[2024] IEHC 758
THE HIGH COURT
JUDICIAL REVIEW
[2024 / 920 JR]
BETWEEN:
daa plc
Applicant
and
THE IRISH AVIATION AUTHORITY
Respondent
and
AIRPORT COORDINATION LIMITED, AER LINGUS LIMITED, RYANAIR DAC, EMERALD AIRLINES IRELAND LIMITED, AND AIR TRANSPORT ASSOCIATION OF AMERICA, INC. TRADING AS AIRLINES FOR AMERICA, DELTA AIR LINES INC., JETBLUE AIRWAYS CORPORATION AND UNITED AIRLINES INC.
Notice Parties
____________________________________________
[2024 / 927 JR]
BETWEEN:
AER LINGUS LIMITED
Applicant
and
THE IRISH AVIATION AUTHORITY
Respondent
and
daa plc AND AIRPORT COORDINATION LIMITED AND AIR TRANSPORT ASSOCIATION OF AMERICA, INC. TRADING AS AIRLINES FOR AMERICA, DELTA AIR LINES INC., JETBLUE AIRWAYS CORPORATION AND UNITED AIRLINES INC.
Notice Parties
______________________________________________
[2024 / 928 JR]
BETWEEN:
RYANAIR DESIGNATED ACTIVITY COMPANY
Applicant
and
THE IRISH AVIATION AUTHORITY
Respondent
and
daa plc AND AIRPORT COORDINATION LIMITED AND AIR TRANSPORT ASSOCIATION OF AMERICA, INC. TRADING AS AIRLINES FOR AMERICA, DELTA AIR LINES INC., JETBLUE AIRWAYS CORPORATION AND UNITED AIRLINES INC.
Notice Parties
________________________________________
[2024 / 1296 JR]
BETWEEN:
AER LINGUS LIMITED
Applicant
and
THE IRISH AVIATION AUTHORITY
Respondent
and
daa plc AND AIRPORT COORDINATION LIMITED
Notice Parties
___________________________
[2024 / 1297 JR]
BETWEEN:
AIR TRANSPORT ASSOCIATION OF AMERICA, INC. (TRADING AS AIRLINES FOR AMERICA), DELTA AIR LINES, INC., JETBLUE AIRWAYS CORPORATION AND UNITED AIRLINES, INC.
Applicants
and
THE IRISH AVIATION AUTHORITY
Respondent
and
daa plc AND AIRPORT COORDINATION LIMITED and RYANAIR DESIGNATED ACTIVITY COMPANY and AER LINGUS LIMITED and EMERALD AIRLINES IRELAND LIMITED
Notice Parties
____________________
[2024 / 1299 JR]
BETWEEN:
RYANAIR DESIGNATED ACTIVITY COMPANY
Applicant
and
THE IRISH AVIATION AUTHORITY
Respondent
and
daa plc AND AIRPORT COORDINATION LIMITED
Notice Parties
RULING of Mr. Justice Barry O'Donnell delivered on the 11th day of December, 2024
1. This short ruling is being published in order to record that the court has decided to refer certain questions to the Court of Justice of the European Union pursuant to article 267 of the TFEU, and to explain very briefly why that course has been adopted in the above titled judicial review proceedings. The full text of the reference is appended hereto to allow for a comprehensive understanding of the manner in which the issues arose and have been framed.
2. The proceedings listed in the title to this ruling all raise issues concerning the proper construction and application of Council Regulation (EEC) No. 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports (the Slot Regulation). In each case the applicants have challenged determinations pursuant to Article 6(1) of the Slot Regulation that were made by the Irish Aviation Authority (the IAA) of coordination parameters for Dublin Airport for the Winter 2024/25 Season and the Summer 2025 Season, respectively. Among the matters under challenge were decisions by the IAA to implement Passenger Terminal Parameters which impose Passenger Air Traffic Movement (PATM) seat capacities for each season. Three sets of proceedings were brought in respect of the determination concerning the Winter 2024/25 Season and three set of proceedings were brought in respect of the Summer 2025 Season.
3. The issues that arise in the proceedings are multifaceted and complex and involve issues of domestic law and Community law. By way of a very brief summary of what are detailed factual and legal issues, a central issue for the determination of the proceedings will be the question of whether the IAA was entitled to have regard to certain planning conditions that attach to developments at Terminals 1 and 2 at Dublin Airport, which are described as the 32mppa conditions (32 million passengers per annum). Those conditions provide that the combined capacity of the terminals shall not exceed 32mppa unless otherwise authorised by a further grant of planning permission. The resolution of that issue will require the court to interpret Article 6(1) of the Slot Regulation in at least two respects. First, what is a "relevant constraint" for the purpose of determining coordination parameters. Second, what is meant when the Regulation refers to the determination of coordination parameters being based on "objective analysis of the possibilities of accommodating the air traffic, taking into account the different types of traffic at the airport, the airspace congestion likely to occur during the coordination period and the capacity situation".
4. Further significant issues arise on foot of the IAA determinations in respect of the question of "historic slots". In essence, there is a question as to the legal nature of "historic slots", which are series of slots that an airline is entitled to under Article 8(2) of the Slot Regulation where certain conditions and criteria are met, and whether the IAA, as competent authority can set coordination parameters which result in the non-allocation of such slots (or some component thereof). In that regard, there is an argument that the historic slots are in the nature of property rights and it is argued that the IAA cannot make a determination that such slots can be reduced.
5. Finally, a question arises as to whether the Slot Regulation prohibits an Airport Management Body from taking unilateral action to close the airport for a period of time, for the purpose of preventing the operation of allocated slots so as to avoid a breach of the annual passenger limitation.
6. As set out in the Reference appended hereto, the proper interpretation of the Slot Regulation is of critical relevance to the adjudication of the issues in the proceedings. The parties have been unable to identify any relevant case law where the interpretation of the Slot Regulation has been authoritatively considered.
7. The High Court granted the various applicants leave to bring the judicial review proceedings in the Winter 2024/5 proceedings on the 17 July 2024 and the 22 July 2024, respectively. In the Summer 2025 proceedings, the various applicants were granted leave to bring the judicial review proceedings on the 21 October 2024. Thereafter, the High Court provided for an accelerated timetable in order to permit all proceedings to be heard together in early December 2024.
8. In addition, an application was brought in the Summer 2025 proceedings to stay the element of the IAA decision that imposed a PATM seat capacity for the Summer 2025 Season. Following a hearing on 1 November 2024, the court decided to impose the stay that was sought That stay was granted on the 4 November 2024, and was the subject of a written judgment that is available online. The stay only applies only in respect of the element of the decision that imposed the PATM cap and did not affect the other elements of the decision. It can be noted that both the IAA and Airport Coordination Limited (the coordinator for the purposes of the Slot Regulation) were satisfied that if a stay of the type sought was imposed it would not affect their ability to implement the remaining elements in the Summer 2025 decision.
9. All sets of proceedings were listed for hearing on the 3 December 2024, and were scheduled for 5 days of hearings. At a hearing shortly before the trial date, the court was informed that certain of the parties were seeking to have the court address the question of a reference to the CJEU pursuant to Article 267 TFEU in advance of the full trial. The other parties maintained a neutral position and did not oppose that course of action.
10. Having considered the matter, the court was satisfied that it was appropriate in principle to make a referral prior to the full hearing of the issues. The reasons for the decision were: (a) that given the centrality of the EU law measures involved and the lack of any authoritative guidance on their interpretation and application it would not be possible to resolve the proceedings without a reference to the CJEU; (b) that arranging a reference in advance of a full trial would allow for a far more focused hearing of the issues following clarification from the CJEU; (c) these are judicial review proceedings in which the essential facts are largely not disputed and in which there was no application for cross examination of any deponents; and (d) arranging for a reference at this point was a more efficient use of the parties resources and court time.
11. As a consequence, the court decided to postpone the commencement of the hearings to the 4 December 2024 in order to allow the parties to seek to come to agreement on the questions that should be referred. In the event, the parties informed the court on the 4 December 2024 that following considerable discussion and work they had arrived at a consensus around a proposed form of reference. The court is grateful for that work and for the constructive engagement of the parties in the context of what, on any measure, are contentious proceedings of real significance to the parties.
12. The court took a short period to consider the proposed reference and to satisfy itself that the proposed reference document is comprehensive and addresses itself to the issues that require to be resolved. Having done so, and conscious of the benefit of a consensus approach and the difficulties of reaching that consensus, the court considers that the reference as formulated by agreement is comprehensive, appropriate and necessary.
13. In those premises, the court will make the reference in the terms appended hereto. The court will adjourn the six sets of judicial review proceedings pending the determination of the reference by the CJEU, and the costs to date will be reserved. In the meantime, the parties will have liberty to apply on four days' notice to the other parties if there is an issue that requires to be addressed.
APPENDIX - PRELIMINARY REFERENCE
I. The Referring Court or Tribunal
1. The High Court of Ireland.
[Contact details to be inserted if reference is finalised]
II. The Parties to the Main Proceedings
2. daa plc ("daa") is a State owned public limited company and is the owner and operator of Dublin Airport.
3. The Irish Aviation Authority (the "IAA") is a statutory body and the single civil aviation regulator for Ireland. The IAA is the competent authority in Ireland for the purposes of Council Regulation (EEC) No. 95/93 of 18 January 1993 on common rules for allocation of slots at Community Airports (the "Slot Regulation"), by virtue of the Aviation Regulation Act 2001 and the Air Navigation and Transport Act 2022. The IAA is responsible for discharging and overseeing Ireland's obligations under the Slot Regulation.
4. Airport Coordination Limited ("ACL") is the independent coordinator for Dublin Airport appointed for the purposes of Article 4 of the Slot Regulation. ACL decides how the available capacity is to be specifically allocated between individual air carriers who have requested slots at Dublin Airport, in line with the requirements of the Slot Regulation.
5. Aer Lingus Limited ("Aer Lingus"), Ryanair Designated Activity Company ("Ryanair"), Delta Air Lines, Inc., JetBlue Airways Corporation and United Airlines, Inc are all airlines that fly into and out of Dublin Airport. Air Transport Association of America, Inc. (trading as Airlines for America), is an association of airlines principally based in the United States of America. The American airlines and Air Transport Association of America, Inc., are collectively known as the "A4A parties".
III. The Subject Matter of the Dispute in the Main Proceedings
6. The proceedings (listed in Annex 1) involve challenges to the determination by the IAA of coordination parameters for Dublin Airport for the Winter 2024/25 Season and the Summer 2025 Season pursuant to Article 6(1) of the Slot Regulation.
7. The issues arising in the proceedings on which a reference is sought involve:
(i) the correct interpretation and application of Article 6(1) of the Slot Regulation including what is a "relevant constraint" for the purpose of determining coordination parameters, and that the determination of coordination parameters shall be based on "objective analysis of the possibilities of accommodating the air traffic, taking into account the different types of traffic at the airport, the airspace congestion likely to occur during the coordination period and the capacity situation";
(ii) the status of "historic slots", which are series of slots that an airline is entitled to under Article 8(2) of the Slot Regulation where certain conditions and criteria are met, and whether the IAA, as competent authority can set coordination parameters which result in the non-allocation of such slots (or some component thereof) and, if so, in what circumstances; and
(iii) the question of whether the Slot Regulation prohibits an Airport Management Body from taking unilateral action to close the airport for a period of time, for the purpose of preventing the operation of allocated slots so as to avoid a breach of the annual passenger limitation?
IV. Legal Context
Relevant provisions of EU Law
8. Council Regulation (EEC) No. 95/93 of 18 January 1993 on common rules for allocation of slots at Community Airports (OJ L 14, 22.1.1993), as amended. A full list of the amendments is contained in Annex II.
9. The attention of the Court is brought to the Slot Regulation generally and to Recitals 2 and 9 of Council Regulation (EEC) No 95/93, as originally enacted.
10. The attention of the Court is also brought to Recitals 2, 8 and 9 of Regulation (EC) No 793/2004.
11. The attention of the Court is brought to the following definitions as contained in Article 2 of the Slot Regulation:
· Article 2(a) - Slot
· Article 2(d) - Scheduling Period
· Article 2(f) - Air Carrier
· Article 2(g) - Coordinated Airport
· Article 2(j) - Managing Body of an Airport
· Article 2(k) - Series of Slots
· Article 2(m) - Coordination parameters
12. The attention of the Court is brought is brought to the following Articles of the Slot Regulation:
Article 5 - Coordination committee
Article 6 - Coordination parameters
Article 8 - Process of slot allocation
Article 8a - Slot mobility
Article 8b - Exclusion of compensation claims
Article 10 - Slot pool
Article 14 - Enforcement
13. A slot within the meaning of the Slot Regulation comprises the permission given by the airport coordinator in accordance with the Slot Regulation to use the full range of airport infrastructure and in particular to move an aircraft from an airport terminal to a runway or vice-versa, at a specific airport, at a specific time. Without being allocated a slot an air carrier cannot operate a commercial flight into or out of Dublin Airport.
14. The Slot Regulation aims to ensure that, in airports where capacity is constrained, such as Dublin Airport, the competent authority determines coordination parameters based on an objective analysis of the possibilities of accommodating the air traffic, taking into account the different types of traffic at the airport, the airspace congestion likely to occur during the coordination period and the capacity situation, and that the available landing and takeoff slots expressed in that capacity determination are used efficiently and distributed in a fair, non-discriminatory and transparent manner.
15. In accordance with Article 8(1) of the Slot Regulation, series of slots are allocated from the slot pool to air carriers, as permissions to use airport infrastructure, for the purpose of landing or taking off from Dublin Airport, during a scheduling period, as defined in Article 2 (d) of the Slot Regulation. At the expiry of that scheduling period, the series of slots have to be returned to the slot pool.
16. Without prejudice to Articles 7, 8a and 9, and Article 10(1) and Article 14(1), the general rule contained in Article 8(1) of the Slot Regulation shall not apply where an air carrier can satisfy the requirements of Article 8 (2) of the Slot Regulation by showing that it has used a series of slots for the operation of scheduled and programmed non-scheduled air services and can demonstrate to the satisfaction of the airport coordinator that the series of slots in question has been operated by that carrier for at least 80% of the time within the scheduled period for which it has been allocated.
17. Under the Slot Regulation, the IAA, as the competent authority, is responsible for determining the coordination parameters for Dublin Airport in accordance with Article 6(1) which prescribes the capacity available for slot allocation at Dublin Airport for the Summer and Winter seasons and which must be offered to the airlines. The Summer Season commences on the last Sunday in March and ends on the Sunday before the last Sunday in October, and the Winter Season commences on the last Sunday in October and ends on the Saturday before the last Sunday in March.
18. The coordination parameters determined by the IAA are applied by ACL, which allocates slots based on the IAA's coordination parameters, in accordance with the Slot Regulation and taking into account additional rules and guidelines established by the air transport industry world-wide or Community-wide such as the Worldwide Airport Slot Guidelines of the International Air Transport Association. The attention of the Court is also drawn to the Airport Capacity: Guidance on Airport Capacity Declarations 2023, published by the Airports Council International and Airport Capacity Declaration and Temporary Changes in Capacity published by the Worldwide Airport Slot Board. There is a dispute between the parties as to the entitlement of the IAA, as competent authority, to take into account any or all of this Guidance in determining coordination parameters.
19. Also of relevance is Regulation (EU) No 598/2014 of the European Parliament and of the Council of 16 April 2014 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Union airports within a Balanced Approach and repealing Directive 2002/30/EC.
20. Articles 16 and 17 of the Charter of Fundamental Rights of the European Union ("CFEU" or "Charter") are also at issue in the proceedings.
21. In addition, in the proceedings brought by daa, the duty of sincere cooperation under Article 4(3) of the Treaty on the Functioning of the European Union, and the interaction of that duty with the Member States' obligations when setting coordination parameters under Article 6(1) of the Slot Regulation, are at issue.
V. An account of the facts on which the questions are based
Factual Background
22. Dublin Airport is a 'level 3' coordinated airport (i.e. a slot constrained airport) for the purpose of the Slot Regulation. It has been designated as a level 3 airport since 2007. There are two terminals at Dublin Airport, Terminal 1 and Terminal 2.
23. A coordination committee is in place at Dublin Airport, as required under Article 5(1) of the Slot Regulation (the "Dublin Coordination Committee"). The Dublin Coordination Committee comprises daa, AirNav Ireland (the Air Navigation Services Provider) and representatives of airlines operating at Dublin Airport. Aer Lingus, Ryanair, Delta Air Lines, JetBlue, United Airlines and Emerald Airlines are members of the Dublin Coordination Committee. The IAA and ACL attend meetings as observers. daa acts as chair of the Dublin Coordination Committee.
The 32mppa Conditions
24. By decision dated 29 August 2007, An Bord Pleanála, the independent competent authority for the purposes of granting development consent in Ireland, granted permission for Phase 1 of the development of a new Terminal (Terminal 2) at Dublin Airport subject to conditions and refused permission for Phase 2 of the proposed development (the "Terminal 2 Permission").
25. Condition 3 of the Terminal 2 Permission states:
"The combined capacity of Terminal 2 as permitted together with Terminal 1 shall not exceed 32 million passengers per annum unless otherwise authorised by a further grant of permission.
Reason - Having regard to the policies and objectives of the Dublin Airport Local Area Plan and the capacity constraints (transportation) at the eastern campus".
26. An Bord Pleanála carried out an environmental impact assessment ("EIA") pursuant to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (the "EIA Directive") prior to granting development consent for Terminal 2.
27. By decision dated 10 January 2008, An Bord Pleanála granted development consent for the extension of Terminal 1 (the "Terminal 1 Extension Permission"). Condition 2 of the Terminal 1 Extension Permission states:
"The combined capacity of Terminal 2 as permitted together with Terminal 1 shall not exceed 32 million passengers per annum unless otherwise authorised by a further grant of permission.
Reason - Having regard to the policies and objectives of the Dublin Airport Local Area Plan and the capacity constraints (transportation) at the eastern campus".
28. No environmental impact statement was submitted with the application for the Terminal 1 Extension Permission. A screening for EIA was completed by An Bord Pleanála prior to the grant of development consent for the extension of Terminal 1. It was considered by An Bord Pleanála that the question of the overall capacity of Terminal 1 and Terminal 2 had been determined by the grant of development consent for Terminal 2 and that the relevant condition should be re-stated as part of the grant of development consent for the extension of Terminal 1.
29. There is a dispute between the parties as to whether the fact that an EIA was carried out in respect of the Terminal 2 Permission means that condition 3 of the Terminal 2 Permission was attached for the purpose of mitigating identified likely effects on the environment.
30. The stated reason for the imposition of the 32mppa Conditions was two-fold. The first refers to policies and objectives of the Dublin Airport Local Area Plan 2006 (the "DALAP 2006"), which is a plan or programme within the meaning of Council Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (the "SEA Directive") and which was subject to a strategic environmental assessment ("SEA") prior to its adoption.
31. The DALAP 2006 proposed the development of a third terminal at the western campus at Dublin Airport in addition to the existing eastern campus which includes Terminal 1 and Terminal 2. The Planning Inspector who advised An Bord Pleanála on the Terminal 2 Permission considered that a capacity of approx. 30mppa for the eastern campus was appropriate so as not to undermine the objective of balanced development between the existing eastern campus and the proposed western campus having regard to the overall capacity at the airport being considered at the time to be in the region of 45mppa. The Inspector advising on the Terminal 2 Permission recommended that the combined capacity of Terminal 1 and Terminal 2 should not exceed 32mppa to ensure that the development of a third terminal in the western campus remained viable unless specifically allowed for following a review of the DALAP 2006. This recommendation was reflected in Condition 3 of the Terminal 2 Permission (and in turn in Condition 2 of the Terminal 1 Extension Permission).
32. The second stated reason for imposing the 32mppa Conditions refers to "capacity constraints (transport) at the eastern campus". There is a dispute between the parties as to the precise origin of this second reason and the relevance of its provenance.
33. Relatedly, if it is determined that the 32mppa Conditions are a relevant constraint for the purposes of Article 6(1) of the Slot Regulation, there is a dispute as to whether the duty of sincere cooperation is engaged: (i) on the basis that the DALAP 2006 is a plan or programme within the meaning of the SEA Directive and which was subject to a strategic environmental assessment prior to its adoption, and/or (ii) having regard to the EIA carried out prior to the grant of the Terminal 2 Permission.
34. While the Terminals can physically accommodate more than 32mppa without further infrastructural works, because of the 32mppa Conditions, the annual limit of passengers in any calendar year is 32 million. In the event that the limit established by the 32mppa Conditions is breached, daa may be subject to the imposition of administrative and/or criminal sanctions in accordance with Part VIII of the Planning and Development Act, 2000 as amended, which could include a Court order requiring Dublin Airport to be operated in accordance with the 32mppa Conditions.
35. Certain parties to the proceedings do not agree as to the proper interpretation of the 32mppa Conditions and in particular how compliance as regards the 32mppa is properly assessed in terms of how passengers are counted. The interpretation of the 32mppa Conditions is not a matter which needs to be resolved by the CJEU.
36. There is also a dispute between the parties as to whether the 32mppa Conditions are a "relevant constraint" for the purpose of determining coordination parameters including whether they are a "technical", "operational" and/or "environmental" constraint and/or whether they should be considered in carrying out the objective analysis referred to in the second paragraph of Article 6(1) relating to the "capacity situation".
37. There is also a dispute between the parties as to whether the 32mppa Conditions relate to "capacity" of the Terminals at Dublin Airport or "throughput" at the Terminals, or whether there is any distinction between those concepts and their relevance, if any, to the setting of coordination parameters. This is a key issue in the proceedings and the position of the parties on this issue is detailed in Section VII below.
38. The first time that the 32mppa Conditions were reflected in the coordination parameters for Dublin Airport was in the Winter 24/25 Coordination Parameters. This was in circumstances where passenger forecasts carried out by daa indicated that the 32mppa limit could be reached or exceeded in 2024.
Winter 24 Decision
39. On 7 May 2024, the IAA published its "Final Decision on Winter 2024 Coordination Parameters at Dublin Airport" (the "Winter 24 Decision").
40. The Winter 24 Decision records that "to appropriately take account of these planning conditions, [the IAA] have decided to implement a seat capacity limit of 14.4 million seats for the W24 season." Accordingly, the IAA imposed a seasonal Passenger Air Traffic Movement ("PATM") seat cap of 14,405,737 passengers, during the period commencing on 27 October 2024 and ending on 29 March 2025.
41. The number of passengers projected to use the Terminals at Dublin Airport in the calendar year 2024 is in excess of the limit of 32mppa set by the 32mppa Conditions. There is a dispute in the national proceedings as to whether a PATM seat cap can or should ensure compliance with limits such as those set by the 32mppa Conditions.
42. Whether or not the 32mppa Conditions are a relevant constraint and, if so, how the IAA is to give effect to them in determining coordination parameters are matters which arise in this Preliminary Reference and are the subject of specific questions contained in Section VII.
43. The inclusion of the PATM gave rise to an impact on "pool slots" which were sought by Aer Lingus, Ryanair and JetBlue for the Winter 24/25 Season. In addition, changes in service to Dublin by U.S. carriers were denied because of the PATM seat cap. However, the inclusion of the PATM seat cap in the Winter 24 Decision did not result in the coordination parameters for Winter 2024 being insufficient to accommodate all slots with respect to which airlines have entitlements under Article 8(2) of the Slot Regulation.
Summer 25 Decision
44. On 10 October 2024, the IAA published its "Final Decision on Summer 2025 Coordination Parameters at Dublin Airport" (the "Summer 25 Decision").
45. The Summer 25 Decision records that "to take account of the constraint represented by certain planning conditions which limit the combined capacity of Terminal 1 and Terminal 2 at Dublin Airport to 32 million passenger per annum (known as the '32mppa Conditions'), [the IAA] have included a coordination parameter in the form of a seasonal seat cap of 25.2 million seats."
46. By Order dated 4 November 2024, the Irish High Court (O'Donnell J) granted a stay on the PATM seat cap included in the Summer 25 Decision until the determination of the proceedings or until further order of the Court.
47. The effect of the stay on the PATM seat cap is that the number of passengers using the Terminals in the calendar year 2025 is forecast to exceed 32mppa.
48. As a result of the stay, ACL was in a position to allocate airlines all of their historic slots for the Summer 2025 Season. All parties accept that absent the stay, the implementation of the PATM seat cap would have resulted in ACL not being in a position to facilitate all requests for slots made by airlines and the non-allocation of certain historic slots (or components thereof).
VI. The Grounds for the Reference
49. The interpretation of the Slot Regulation is critical to the outcome of the proceedings. The parties have identified disputes on the interpretation and application of the Slot Regulation on which there is no relevant case law. A summary of the legal arguments advanced by the airlines, daa and the IAA which are of relevance to this reference is set out below.
Summary of Aer Lingus Legal Arguments
50. Aer Lingus' arguments insofar as they are relevant to this Request for a Preliminary Ruling, include:
The IAA erred in law, acted ultra vires and outside its statutory powers, and / or acted irrationally and / or acted disproportionately in taking into account the 32mppa Conditions when setting coordination parameters
51. Aer Lingus's position is that the 32mppa Conditions are not a relevant constraint and that the IAA erred in taking them into account when determining the coordination parameters under Article 6(1) of the Slot Regulation. There are three aspects to this ground.
52. The first is that the remit of the IAA under the Slot Regulation is to set the "capacity available for slot allocation". Capacity means the maximum amount that something can accommodate. For the purpose of the Slot Regulation capacity is the maximum number of movements (and related passengers) which the airport could accommodate.
53. Passenger throughput (also referred to as passenger outturn) is a different issue to capacity and refers to the number of passengers who actually use the terminals as opposed to what the actual capacity of the terminals is. The throughput of the terminals is restricted by the 32mppa Conditions - not the capacity of the terminals. In the case of Dublin Airport, the capacity of the terminals according to the Dublin Airport Local Area Plan 2020 ("DALAP 2020") is 40mppa which is significantly higher than the 32million referred to in the conditions. The DALAP 2020 is a statutory land use plan adopted by Fingal County Council.
54. Aer Lingus's position is that in setting a PATM seat cap of 14.4 million, the IAA is in effect attempting to limit the passenger throughput of the terminals (as opposed to capacity), which it has no jurisdiction to do under the Slot Regulation. The IAA accept in its Opposition Papers filed in the Aer Lingus proceedings that it cannot control passenger throughput in the Winter 24 Decision.
55. In circumstances where the 32mppa Conditions relate to throughput and not capacity the conditions are not a relevant constraint on capacity, regardless of whether the conditions are considered to be technical, operational or environmental constraints.
56. Furthermore, Article 6 of the Slot Regulation requires the IAA to determine coordination parameters at Dublin Airport, with a view to maximising capacity, by reference to what the terminals could possibly accommodate. In applying a PATM seat cap the IAA did not set coordination parameters with a view to maximising the capacity which Dublin Airport could potentially accommodate and it has no power to set a limit on passenger throughput.
57. The second aspect is that if, the CJEU find that the 32mppa Conditions relate to capacity, the IAA still should not have taken them into account as they are not a "relevant technical, operational or environmental constraint".
58. Aer Lingus maintains that "technical constraints" relate to the technical capability of equipment or facilities involved in the processing of aircraft, passengers and baggage. "Operational constraints" cover matters such as the layout of taxiways, towing of aircraft, mode of operation of runways. "Environmental constraints", on a literal interpretation of the phrase, means that the constraint relates to or arises out of an environmental medium, for example noise, air and atmosphere, water, emissions, waste, soil, landscape etc and which because of their presence would have a limiting effect on the capacity of Dublin Airport.
59. Aer Lingus does not accept that simply because an EIA was carried out in respect of the Terminal 2 Permission that the 32mppa Conditions were attached to mitigate identified likely environmental effects as contended for by daa. Furthermore, no EIA was carried out in respect of the Terminal 1 Extension Permission. In order to determine if the 32mppa Conditions are an "environmental constraint", it is necessary to look at the purpose behind the imposition of the 32mppa Conditions. It is Aer Lingus's position that the 32mppa Conditions were imposed due to a desire on the part of An Bord Pleanála not to undermine the policies and objectives of the Dublin Airport Local Area Plan (2006) (the "DALAP 2006") which proposed the development of a western campus at Dublin Airport in addition to the existing eastern campus which includes Terminal 1 and Terminal 2. In this context, it was considered by the Inspector advising on the Terminal 2 Permission that a capacity of approx. 30mppa for the eastern campus was appropriate so as not to undermine the objective of balanced development between the existing eastern campus and the proposed western campus. The Inspector advising on the Terminal 2 Permission recommended that the combined capacity of Terminal 1 and Terminal 2 should not exceed 32mppa unless specifically allowed for following a review of the DALAP 2006. This recommendation was reflected in Condition 3 of the Terminal 2 Permission (and in turn in Condition 2 of the Terminal 1 Extension Permission). As such the reason for imposing the 32mppa Conditions related to policy matters and not environmental issues.
60. The second stated reason for the imposition of the 32mppa Conditions relates to transportation constraints at the eastern campus. However, the fact that the reason refers to transportation constraints does not bring the 32mppa Conditions within the scope of a "technical, operational and environmental constraint". Firstly, the transportation constraints were not the primary reason for the imposition of the 32mppa Conditions. The primary reason is the policy considerations arising from the DALAP 2006 relating to facilitating the expansion of the western campus. Secondly, as noted above the imposition of a limit of 32mppa derived not from an assessment of transport capacity but from the DALAP 2006. Fingal County Council during the oral hearing on the Terminal 2 application explained that environmental constraints or the capacity of roads did not play a role in determining the capacity of approx. 30mppa referred to in the DALAP. Fingal County Council further explained that the overall vision was to ensure that development moved to the western campus following reaching the approx. 30mppa figure in the eastern campus, and that development of the eastern campus did not compromise the development of the western campus.
61. daa and IAA in their Opposition Papers filed in response to the Aer Lingus proceedings argue that conditions attaching to planning permissions are routinely treated as a relevant constraint at Dublin Airport, and at in other airports (such as Luton, Stansted, Heathrow, Amsterdam Schiphol and Paris Charles De Gaulle), and that Aer Lingus has provided no example where such a condition is not treated as a relevant constraint for any of the reasons identified by Aer Lingus. Aer Lingus does not accept that the conditions applicable in these airports are comparable to the 32mppa Conditions.
62. Insofar as daa and the IAA rely on guidelines published by the Airports Council International, the Worldwide Airport Slot Board and the Worldwide Airport Coordinators Group, Article 6 of the Slot Regulation does not refer to guidance documents and does not permit reliance on any such guidance documents for the purpose of determining coordination parameters.
63. The third aspect again only arises if the CJEU finds that the 32mppa Conditions are relevant constraints and is that if the Decision cannot ensure compliance with the 32mppa Condition, these conditions can never be a "relevant" constraint because the means of ensuring compliance with same cannot be achieved through the setting of coordination parameters. The fact that the coordination parameters cannot ensure compliance with the conditions is accepted by IAA.
IAA erred in law and/or acted in breach of Aer Lingus's rights under the CFEU by making a decision which has the consequence that historic slots, to which Aer Lingus has vested statutory rights under Article 8(2) of the Slot Regulation and/or which constitute a property right will be withdrawn from Aer Lingus, without any legal basis for such withdrawal.
64. Aer Lingus maintains that it has (a) vested statutory rights under Article 8(2) to historic slots and / or (b) historic slots under Article 8(2) constitute property rights which are protected under the CFEU. As such historic slots can only lawfully be withdrawn if the Slot Regulation expressly provides for their withdrawal. The Slot Regulation contains no such provision. This means that the statutory scheme does not provide any guidance as to the procedure to follow and the factors to be considered in deciding on how historic slots are to be withdrawn.
65. In terms of EU law, the removal of historic slots is an interference with inter alia Aer Lingus's freedom to conduct a business in accordance with Community Law and National Law as protected by Article 16 of the CFEU. Historic slots come within the scope of Article 16 and the terms of this protection and in particular the protection of the freedom to use the "economic, technical and financial resources at an undertaking's disposal".
66. As such, the right to interfere with and or remove historic slots would need to be defined by the Slot Regulation itself. No such power is provided in the Slot Regulation, which is entirely silent on the question of removal of historic slots and, does not provide any mechanism or criteria to be applied when removing slots.
67. Aer Lingus submits that, in addition to historic slots constituting vested rights as outlined above, historic slots also constitute property rights which are therefore protected under Article 17 of the CFEU. Historic slots have an asset value and can be exchanged for monetary consideration. The Communication from the European Commission to the European Parliament of 30 April 2008 (COM(2008) 227) supports the argument that historic slots constitute property rights in that it acknowledges that "exchanges of slots for monetary and other consideration more commonly referred to as secondary trading, are taking place at a number of congested Community Airports" and further notes that the Slot Regulation is "silent on the question of exchanges with monetary and other consideration to reflect differences in value between slots at different times of day and other factors".
68. There is an established legal position enabling the holder of historic slots to exercise the right to use the historic slots autonomously and for the holder's own benefit. Under Article 8a of the Slot Regulation the air carrier has the right to transfer historic slots from one route or type of service to another route or type of service operated by the same carrier.
69. Aer Lingus is not aware of any cases where the determination of coordination parameters has resulted in the non-allocation of historic slots. While the IAA maintain that this has occurred at Schiphol in Amsterdam this is not correct and is disputed by Aer Lingus.
70. In addition, even if historic slots could be lawfully withdrawn (which is denied), such withdrawal, which would amount to an interference with a statutory right / property right, would have to be proportionate.
Summary of Ryanair Legal Arguments
71. Ryanair's arguments insofar as they are relevant to this Request for a Preliminary Ruling, include:
The IAA's Final Decisions on Winter 2024 and on Summer 2025 coordination parameters at Dublin Airport are ultra vires the IAA and/or was made without jurisdiction and/or otherwise in accordance with law
72. This argument has several elements. First, Article 6 of the Slot Regulation requires the IAA to determine coordination parameters at Dublin Airport, with a view to maximising capacity, by reference to what the terminals could possibly accommodate, but the PATM seat caps for Winter 2024 and Summer 2025 represent an artificial constraint on the throughput of passengers at Dublin Airport. The IAA did not set coordination parameters with a view to maximising what Dublin Airport could potentially accommodate and it has no power to set a limit on passenger throughput.
73. The 32mppa conditions constitute a limitation on the throughput of passengers at Dublin Airport, rather than the capacity of the airport. Moreover, they are planning conditions, imposed and enforced pursuant to a separate statutory code. The reasons for their imposition no longer pertain. In other words, the 32mppa conditions do not reflect the current physical infrastructure at Dublin Airport, or the policy of the local authority, as expressed in the DALAP 2020. The current infrastructure at Dublin Airport can facilitate greater throughput than the 32mppa.
74. Second, when determining coordination parameters, the IAA was required to take into account only those technical, operational and environmental factors which affected the performance of the airport infrastructure and its different sub-systems (Article 2 (m)) and to reflect "the possibilities of accommodating air traffic" (Article 6 (1)). The 32mppa conditions do not satisfy this definition; they are not technical, operational and environmental factors which affected the performance of the airport infrastructure and its different sub-systems. Nevertheless, the IAA impermissibly had regard to the planning conditions, which are not relevant to the capacity of the airport, or affect the performance of the airport infrastructure. The imposition of the PATM seat caps for Winter 2024 and Summer 2024 are artificial constraints, which do not reflect the possibility of accommodating air traffic at Dublin Airport. In that respect:
a. If the 32 mppa Conditions are not "a relevant technical, operation or environmental constraint" then they should not have been taken into account for the purposes of Article 6(1) notwithstanding any conclusion by the CJEU that they relate to capacity availability generally.
b. Technical constraints relate to the technical capability of equipment or facilities involved in the processing of aircraft, passengers and baggage. Operational constraints cover matters such as the layout of taxiways, towing of aircraft, mode of operation of runways. Environmental constraints means that the constraint relates to or arises out of an environmental medium, for example noise, air and atmosphere, water, emissions, waste, soil, landscape etc. and which have a limiting effect on the capacity of Dublin Airport.
c. It is those constraints, and no others, that inform the capacity available for the purposes of Article 6(1). Therefore, unless the CJEU concludes that the 32 mppa conditions are one of the three identified categories of constraint it must follow that they are not relevant to an Article 6(1) decision.
75. Third, the range of factors to which the IAA can legitimately have regard when determining coordination parameters are exhaustively prescribed by the Slot Regulation. The IAA is not required or entitled to have regard to planning conditions and it has no role in the enforcement of those conditions; its sole function is to determine the capacity of Dublin Airport and to allocate slots in a manner which ensures that this is maximised.
76. There was no discussion within the Coordination Committee of the method of achieving the restrictions proposed. The details of the PATM seat caps for Winter 2024 and Summer 2025, the method of calculating the same and changes thereto were not discussed within the Coordination Committee. This is a clear departure from the architecture of the decision-making process required by Article 6 (3) of the Slot Regulation.
77. Fourth, the IAA has no power to determine coordination parameters in a manner which results in (whether directly or indirectly, during Summer 2025 or thereafter) an interference with Ryanair's right to be allocated series of slots in accordance with Article 8 (2) of the Slot Regulation. Those rights are, in their terms, expressed to be subject only to "Articles 7, 8a and 9, Article 10 (1) and (2a) and Article 14". Article 8b suggests that community law measures "in particular in application of the rules of the Treaty relating to air transport", or certain competition law measures may result in the "limitation, restriction or elimination" of historic slots. Nowhere in the Slot Regulation is the IAA given power to determine coordination parameters in a manner which results in the limitation, abrogation or elimination of vested rights in accordance with Article 8 (2) of the Slot Regulation.
78. Whilst the IAA's Decisions on coordination parameters for Winter 2024 and Summer 2025 and in particular the decisions to impose a PATM seat cap are made "under Community law" for the purposes of Article 8b, this cannot, of itself, justify a restriction of Ryanair's vested rights as the Community law measure invoked (Article 6 of the Slot Regulation) gives no power to interfere with historic slot rights. Article 8b clearly envisages a clearly worded community law measure, which constitutes or authorises an express derogation from the rights granted by Article 8 (2) of the Slot Regulation. There is no implied entitlement to set coordination parameters pursuant to Article 6 of the Slot Regulation in a manner which interferes with rights accrued under Article 8 (2).
In making its Final Decisions on Winter 2024 and Summer 2025 coordination parameters at Dublin Airport and in particular in deciding to impose PATM seat caps which necessarily resulted in the interference with Ryanair's right to be allocated series of slots for Summer 2025 in accordance with Article 8 (2), the IAA exceeded its powers and failed to vindicate and/or to sufficiently to protect Ryanair's vested rights, which are protected by Article 16 and Article 17 of the CFEU.
79. Ryanair is entitled to be allocated series of slots in Dublin Airport, in accordance with Article 8 (2) of the Slot Regulation for Summer 2025. This statutory right is necessary to enable Ryanair to carry on business from Dublin Airport. Moreover, this statutory right has all the hallmarks of a property right.
80. First, a historic slot carries with it an immutable entitlement to take off or land from Dublin Airport, subject to limited exceptions. Any slot can be assigned or transferred between routes, or indeed to another carrier, in accordance with Article 8a. These rights are of real value to Ryanair. Ryanair has accrued a leading market share (52% in Summer 2024) of the slots in Dublin Airport. It has acquired those historic rights strictly in accordance with the Slot Regulation, since 2007.
81. A right to a series of historic slots guarantees an airline, such as Ryanair, the right to use airport infrastructure, on a particular day, at a particular time, in the next equivalent scheduling season, for the purpose of operating commercial flights. The bundle of rights embodied in a slot, for the purposes of the Slot Regulation, are undoubtedly valuable rights. No airline can take off or land from Dublin Airport without a slot. They are rights which Ryanair has earned and to which it is entitled and which must be honoured, unless Ryanair does not use the same (Article 10) or is guilty of the type of misconduct contemplated by Article 14 (4) of the Slot Regulation or the exceptional circumstances envisaged by Article 8b arise.
82. Moreover, slots can be transferred from one airline to another; authorities of the Courts of England and Wales (R v. Airport Coordination Limited Ex Parte the States of Guernsey Transport Board [1999] EWHC Admin 264; [1999] All ER (D) 347; [1999] EU LR 745 and R (Monarch Airlines Limited) v. Airport Coordination Limited [2017] EWCA CIV 1892) suggest this can be done in part consideration of a money payment. The World Airport Slot Guidelines also suggest these rights must be honoured (paragraphs 1.7.2 and 6.10.1).
83. The IAA decided to impose a PATM seat cap for summer 2025, knowing that this would inevitably interfere with Ryanair's vested rights, but it did not conduct any or any lawful proportionality analysis before it did so.
Summary of the A4A Parties' Legal Arguments
84. The A4A Parties' arguments insofar as they are relevant to this Request for a Preliminary Ruling, include the following.
85. First, the 32mppa Conditions are not a relevant technical, operational or environmental constraint within the meaning of Article 6(1) of the Slot Regulation. In finding to the contrary, the IAA misinterpreted Article 6.
a. When regard is had to the definition of "coordination parameters" in Article 2(m), which was inserted into the Slot Regulation by Regulation (EC) No. 793/2004, which also inserted this phrase into Article 6(1), it is evident that the "relevant" constraints referred to are those "that affect the performance of airport infrastructure and its different sub-systems".
b. It is clear from the second paragraph of Article 6(1) that the exercise that the IAA is required to carry out is an objective analysis of the possibilities of accommodating air traffic at the airport. This is consistent with the definition of a "slot" in Article 2(a). The capacity of Dublin Airport to accommodate air traffic is significantly higher than the limit set by the PATM seat cap.
c. For the purposes of Article 6(1) and the setting of coordination parameters, the relevant "capacity" is the capacity to accommodate air traffic. This is particularly clear when regard is had to Article 2(m) - inserted into the Slot Regulation at the same time as Article 6(1).
d. Article 6(1) requires the IAA to maximise the capacity and number of slots available for allocation at Dublin Airport and it is evident from the Slot Regulation as a whole that its objective is to maximise the capacity and number of slots available at a congested airport. The imposition of the PATM seat cap is wholly inconsistent with this.
e. Article 6(1) must be interpreted in a manner consistent with the objectives of the Slot Regulation. The imposition of the PATM seat cap is wholly inconsistent with these objectives.
86. Second, giving effect to the 32mppa Conditions is not part of the IAA's functions, as national competent authority, when determining the parameters for slot allocation. It is a matter for daa, as the owner and operator of Dublin Airport, to ensure compliance with the 32mppa Conditions and planning enforcement is the responsibility of the planning authorities.
87. Third, the 32mppa Conditions do not operate as a constraint on the capacity of Dublin Airport to accommodate air traffic. Rather, the "constraint" on the capacity of Dublin Airport to accommodate air traffic arises from the PATM seat cap and is one created by the IAA. This is inconsistent with the objective of the Slot Regulation, which is to maximise capacity and increase the number of slots available for allocation at Dublin Airport.
88. Fourth, there is no lawful basis for the withdrawal of historic slots. The entitlement of airlines to historic slots in accordance with Article 8(2) is a vested statutory entitlement, which can only be taken away if there is a clear basis to do so in accordance with the Slot Regulation. The IAA has failed to identify any basis for the withdrawal of historic slots to which the air carriers are entitled, under the Slot Regulation.
a. Neither Article 6 nor Article 8 of the Slot Regulation provide that the IAA can set coordination parameters which result in the refusal or withdrawal of historic slots.
b. The IAA proceeded on the incorrect basis that, because Article 8b of the Slot Regulation explicitly excludes an entitlement to compensation where historic slots are withdrawn in accordance with the requirements of EU law (in particular in application of the TEEC rules relating to air transport), it follows from this that no compensation is payable when historic slots are withdrawn in other circumstances.
c. Both Article 8(2) and Article 8b recognise that airlines acquire an "entitlement" to historic slots under Article 8(2).
d. Article 8b does not provide that compensation is never available. Instead, it defines specific circumstances where rights can be limited, restricted or eliminated without compensation.
e. The suggestion that there is an "implicit" power to withdraw historic slots under the Slot Regulation is not supported by the travaux preparatoires.
f. The entitlement to historic slots is a valuable vested statutory entitlement, which is critical to the A4A Parties' businesses. In purporting to withdraw historic slots, absent any lawful basis to do so, the IAA has acted in breach of the rights of the A4A Parties under Article 16 of the CFEU.
Summary of daa Legal Arguments
89. daa's arguments insofar as they are relevant to this Request for a Preliminary Ruling, include:
The IAA was entitled, and required, to reflect the 32mppa Conditions in the Coordination Parameters for Dublin Airport, where the 32mppa Conditions are relevant to the "capacity situation" at Dublin Airport and/or are a "relevant constraint" within the meaning of Article 6(1) of the Slot Regulation
90. The capacity of Terminal 1 and Terminal 2 at Dublin Airport is set by the 32mppa Conditions, attached to grants of development consent issued in respect of the construction of Terminal 2 and the extension of Terminal 1. By their terms, the 32mppa Conditions place a limit on the combined, annual capacity of the two Terminals and thereby place a constraint on the capacity of those Terminals within the meaning of Article 6(1) of the Slot Regulation. daa does not accept that there is any difference, in this context, between the concepts of "capacity" and "throughput".
91. Coordination parameters must be determined having regard to relevant constraints, must be based on an objective analysis of the possibility of accommodating air traffic, by reference to a number of factors, including the "capacity situation" at the Airport, must reflect all technical operational and environmental factors that affect the performance of the airport infrastructure and must express, in operational terms all of the capacity available for slot allocation at the Airport.
92. Both the terms of the Slot Regulation and relevant international guidance, including the World Airport Slot Guidelines, confirm that: (i) the 32mppa Conditions are constraints on capacity that must be reflected in the Coordination Parameters, as they set the capacity of the Terminals at Dublin Airport and place a limit on the extent of the use of the Terminals, and (ii) the IAA is required to adopt Coordination Parameters that reflect the capacity in fact available at the Airport during the relevant period, having regard the 32mppa Conditions.
93. The capacity of Terminal 1 and Terminal 2 can only be altered by the grant of a new development consent. In that regard, the claim by Aer Lingus that the capacity of Dublin Airport is set by the Dublin Airport Local Area Plan 2020 ("DALAP 2020") and is, therefore 40mppa, is incorrect. The DALAP 2020 is a plan which sets the framework for the grant of development consent in respect of Dublin Airport. The actual capacity of Dublin Airport is set by grants of development consent issued by relevant competent authorities. There is currently an application for development consent pending before the relevant competent authority to increase the capacity of Dublin Airport to 40mppa, which includes an application for permission for the infrastructure upgrades and works necessary for that capacity. Therefore while it is correct that the physical capacity of the terminals at Dublin Airport can accommodate in excess of 32mppa, that is not unlimited and infrastructure upgrades and works, and associated environmental assessments, are required to increase the capacity of Dublin Airport to 40mppa. Unless and until that application for development consent is finally determined by the relevant competent authority, including after the completion of, as necessary, assessments for the purposes of the EIA Directive, the Habitats Directive and the Water Framework Directive, the legally permitted capacity of the Terminals is set at 32mppa.
94. The grant of development consent for the construction of Terminal 2 was preceded by an environmental impact assessment carried out in accordance with the EIA Directive. The 32mppa Conditions, therefore, form part of the environmental impact assessment completed in respect of that development. Further, the DALAP 2006 to which reference was made in the terms of the 32mppa Conditions was the subject of a strategic environmental assessment completed in accordance with the SEA Directive. The use of the Terminals other than in accordance with those assessments is not consistent with European Law.
95. The 32mppa Conditions are therefore legally binding restrictions that impact the capacity situation at Dublin Airport, and are relevant constraints on the operation of Dublin Airport, within the meaning of Article 6(1) of the Slot Regulation.
96. The setting of Coordination Parameters that do not reflect the constraint on the capacity imposed by the 32mppa Conditions would result in a situation whereby slots available for allocation under the Coordination Parameters could not be lawfully operated under the legal framework governing the operation of Dublin Airport. This would be contrary to the requirements of Article 6(1) of the Slot Regulation, and irreconcilable with the objectives of the Slot Regulation.
daa is not empowered to enforce the 32mppa Conditions by way of unilateral action outside the framework of the Slot Regulation
97. Dublin Airport is a level 3 coordinated airport and the control over who is entitled to land and take off at the Airport rests entirely with the IAA and ACL. daa is the managing body of the Airport and is not entitled to decide who can use slots, how they can be used or whether they can be used. daa is also not in control of the number of seats which are sold on flights, which is something in the control of the individual Airlines, subject to the application of a seat cap in any given season.
98. The setting of coordination parameters by the IAA, the allocation of slots by ACL and the sale of seats by the Airlines are, therefore, the primary drivers of the number of people who use the Terminals at Dublin Airport. These are matters which can only be controlled through the process of setting of coordination parameters and slot allocation in accordance with the Slot Regulation.
99. daa is not empowered under national or European law to take unilateral action to prevent Airlines from operating slots allocated to them by the Coordinator in accordance with the Slot Regulation, whether by closing the Airport or otherwise. The taking of unilateral action with the express purpose of preventing the operation by Airlines of slots lawfully allocated to them under the Slot Regulation would not be compatible with the Slot Regulation. In that respect, daa does not accept the IAA's position that daa has a power under national law to unilaterally close Dublin Airport. However, that is not an issue that requires to be addressed by the Court; rather, the issue to be determined by the Court is whether, if such a power did exist as a matter of national law, daa would be precluded from taking that action by reason of the Slot Regulation. Insofar as the IAA suggest that it is open to daa to propose a local guideline under Article 5 of the Slot Regulation, the IAA has previously refused to consider the adoption of a local guideline unless it has been proposed by a majority of the Coordination Committee. The airlines have the majority vote and have refused to cooperate with respect to measures seeking compliance with the 32mppa Conditions or with respect to the proposal of any local guideline by daa. daa is therefore not in a position to take action to seek compliance with the 32mppa Conditions outside of the framework established by the Slot Regulation.
Article 8(2) of the Slot Regulation does not require or permit the setting of Coordination Parameter under Article 6(1) of the Slot Regulation that exceed the capacity of the Airport
100. The Slot Regulation does not establish any absolute entitlement to historic precedence and the establishment of coordination parameters which may not allow for the grant of all slots in respect of which historic precedence arises, in circumstances where the capacity of the Airport within the meaning of Article 6(1) of the Slot Regulation is not sufficient to accommodate all such slots, is not inconsistent with the Slot Regulation.
101. Article 8(2) of the Slot Regulation must be read in a manner consistent with the remainder of the Slot Regulation and any entitlement to historic precedence is subject to the capacity in fact available at the Airport as determined in accordance with Article 6(1). Airlines do not automatically retain slots but rather there is an entitlement to request certain slots from the Coordinator. It is for the Coordinator to determine whether those slots can be allocated, and this must be done in accordance with the Coordination Parameters. Therefore, the allocation of slots with historic precedence is necessarily limited by the coordination parameters and the requirements of Articles 6(1), 7. 9, 10(2), (3) and (4) and 14. The non-allocation of slots to Airlines is envisaged by the Slot Regulation, including by Article 8(3). Daa, in particular, points to Recitals 2, 8 and 9 of Regulation (EC) No. 793/2004.
102. The proceedings do not give rise to any question of the "withdrawal" of historic slots as there is nothing in either the Winter 24 Decision or the Summer 25 Decision which would give rise to the withdrawal of slots which have already been allocated. Instead, the only issue which may arise is the non-allocation of all slots requested by the Airlines in a particular capacity season.
103. The true issue which arises for determination in the proceedings is whether Article 6(1) must be interpreted, by reason of Article 8(2), as including an implied requirement that where capacity at the airport is not sufficient to allocate all slots in respect of which historic precedence arises, Member States must set coordination parameters that exceed the capacity at the Airport so as to accommodate those slots. There is no basis in the Slot Regulation for interpreting Article 6(1) in that manner.
104. The entitlement to request slots in respect of which historic precedence applies does not engage Article 16 or Article 17 of the Charter, having regard to the proper interpretation of the Slot Regulation as discussed above.
Summary of IAA's Legal Arguments
105. IAA's arguments insofar as they are relevant to this Request for a Preliminary Ruling, include:
An objective analysis under Article 6(1) permits a competent authority to take account of a planning condition limiting passenger numbers in airport terminals which is, in any event, a "relevant constraint"
106. The language of Article 6(1) of the Slot Regulation is broad. It requires a competent authority to take account of "all" relevant technical, operational and environmental constraints in the context of the wider, general obligation to determine coordination parameters based on "... an objective analysis of the possibilities of accommodating the air traffic".
107. The Union legislature clearly intended that constraints such as development consents held by an airport operator attaching conditions restricting passenger numbers at coordinated airport terminals, affecting the use of airport infrastructure, must be taken account of when determining slot coordination parameters in such an airport.
108. A 'slot' is defined by reference to "airport infrastructure". Logically, the definition of 'coordination parameters'– which does not itself reference the term 'slot', although slots are clearly germane to it - does also.
109. All constraints to be taken account of relate to factors that affect the "performance" of the airport "infrastructure" in terms of its ability to process passengers/aircraft - including factors other than physical ones, such as planning conditions. However, that does not mean that the relevant constraints on the airport are purely physical.
110. Moreover, the 32mppa Conditions do affect the performance of the airport "infrastructure" because they place a limit on the capacity and/or throughput of passengers using the terminals.
111. Constraints arising from national planning decisions, or equivalent limitations on the operation of airports, are routinely taken into account when determining coordination parameters at airports, and it makes no sense to do otherwise and instead determine coordination parameters as though the constraints did not exist. This is the case at Dublin Airport, where such constraints which restrict the permitted throughput of the runways are already taken account of, and at other airports such as Luton Airport (London), Stansted Airport (London) (which also have annual passenger cap planning conditions), and also Heathrow Airport (London), Schiphol Airport (Amsterdam) and Charles de Gaulle Airport (Paris).).
112. The fact that the IAA has no statutory powers to ensure compliance by the airport operator with planning conditions, or that there is a statutory code for planning, does not mean that planning conditions cannot be relevant constraints or that regard cannot otherwise be had to them under Article 6(1). As the Winter 24 Decision noted (§4.29), the 32mppa Conditions "...are subsisting and unchallenged planning conditions which are likely to be a limiting constraint on demand by, at the latest, 2025."
113. The IAA variously agrees and disagrees with aspects of both daa's and the Airlines' different arguments and analysis on the purpose of the 32mppa Conditions, in terms of why they were originally imposed by the planning authority (for reasons explained in the Winter 24 and S25 Decisions). But, in any event, the original purpose of those Conditions is not important or determinative of whether they are a "relevant constraint" or must be taken into account under Article 6(1), given it is their objective effect, rather than motive or original purpose, which is critical. As the S25 Decision correctly noted the 32mppa Conditions are a relevant constraint "regardless of the purpose or genesis of the particular condition" (S25 Decision, §4.93).
114. Neither is the distinction between throughput and capacity relevant when interpreting Article 6(1) and the Slot Regulation generally. These are "closely related concepts" (S25 Decision, §4.80). There is no such thing as a factor which constrains terminal throughput, but not terminal capacity (S25 Decision, §4.78). Planning conditions which are taken account of as a relevant constraint at Dublin Airport and other airports typically limit throughput, and the coordination parameters alone, by their nature, can never determine the final result in terms of the actual throughput. The Winter 24 Decision correctly noted (§4.45): "The proposed PATM seat cap is a capacity parameter which is the closest proxy available for a passenger limitation".
There is a lawful basis for non-allocation of slots otherwise triggering an entitlement to allocation under Article 8(2) of Slot Regulation
115. The Slot Regulation, in particular Articles 6(1), 8(1) and (2), and read in light of the purpose of determining coordination parameters, provides for the non-allocation of historic slots or components thereof where there is insufficient capacity (having regard to relevant constraints) to accommodate all such entitlements. Moreover, the entitlement to historic slots is not in the nature of a property right, nor does it engage and/or breach Article 16 or 17 of the Charter given that - and strictly in the alternative - if Charter rights are engaged, their limitation in the circumstances is proportionate.
116. If there is insufficient capacity (taking account of constraints, as required by Article 6(1)), then it is not possible to fully accommodate all "historic slot" entitlements for the relevant scheduling period (as indeed has now occurred at Schiphol in Amsterdam, for Winter 2024 and Summer 2025). In such a situation, the entitlement to historic slots under Article 8(2)can no longer arise in full. Article 8(3) expressly envisages that situations will arise "...where all slot requests cannot be accommodated to the satisfaction of the air carriers concerned".
117. Article 8(2) is merely an exception to Article 8(1). Thus, Article 8(2) sets out when slots will not return to the Slot Pool. Article 8(2) does not create entitlements which prevail over aspects of the Slot Regulation other than Article 8(1). In particular, it does not create entitlements which trump the declaration of co-ordination parameters under Article 6(1) such that the IAA is required to set coordination parameters above the capacity of the airport sub-system for the relevant season so that the coordinator can fully reallocate all historic slot series.
118. Indeed, Article 8b expressly envisages that historic slot entitlements under Article 8(2) can be subject to "limitation, restriction or elimination". Where this occurs "under Community law" - such as by virtue of determinations under Article 6 - no claim for compensation arises.
119. The World Airport Slot Guidelines contemplate that there can be a "capacity reduction that cannot accommodate historic slots" in "exceptional circumstances" (see S25 Decision, §§4.42-4.43).
120. On the Airlines' own case, any property right is created by the Slot Regulation itself. Accordingly, it must be subject to the Regulation, including other provisions thereof, such as Article 6. No independent property right arises outside the scope of the Regulation, and any relevant entitlement is equally subject to the provisions of the Regulation.
121. Nonetheless, and without prejudice to the last point, slots (whether under Article 8(2) or otherwise) do not have the characteristics of or give rise to property rights because they are:
a) permissions to use someone else's property for a limited, specified purpose;
b) of a temporary nature and/or contingent upon the airport remaining coordinated (Article 3(7));
c) conditional upon capacity being available; and
d) not freely alienable (see Article 8a).
122. Article 8(2) does not create any entitlements against Member States or the IAA, nor any entitlements to which the functions under Article 6 must be subject. At its height, Article 8(2) merely gives rise to entitlements against other carriers (because the relevant slots do not return to the pool) or entitlements relevant to the independent coordinator's slot allocation role.
123. Article 17 of the CFEU is not engaged and/or is not breached. The Airlines have not identified any case law which holds that a right to property exists in respect of limited interests similar to those arising here. Moreover, a consideration of the legislative history of the Regulation does not lead to any other interpretation or outcome, nor does it aid the Airlines' case.
124. Article 16 of the Charter is not engaged. Taking account of a planning permission imposing conditions limiting the capacity at Dublin Airport (which condition has existed since 2007/2008) does not interfere with anyone's freedom to conduct a business. It does not even interfere with the freedom to conduct a business at Dublin Airport - even if that were the proper focus for Article 16 (which it is not, because Article 16 contemplates the freedom to conduct a business in general). Moreover, Article 16 is expressly subject to Union law (which would include Article 6 of the Slot Regulation) and national law (which would include the 32mppa Conditions).
125. If any Charter rights - whether under Articles 16 or 17 - are engaged, then the limitation upon them which occurs in circumstances such as the present is proportionate. Any contentions of any Airlines (such as Ryanair) that a proportionality assessment did not occur are contradicted by the face of the S25 Decision itself, including (without limitation) §§4.130-4.131 thereof.
126. In any event, the root cause of any impingement upon any entitlements of Airlines is the 32mppa Conditions themselves (which they have not challenged).
IAA's response to daa's arguments
127. daa accepted the validity of, and has not to date obtained any variation or amendment of, the 32mppa Conditions. daa proposed terminal capacity coordination parameters for W23 and S24 which did not take account of the 32mppa Conditions, and daa did not propose any coordination parameters for Winter 24, whether to take account of the 32mppa Conditions or at all. That was notwithstanding the IAA's invitation to daa, as part of the S19 declaration process, to address whether the 32mppa Conditions might represent a "relevant constraint", and notwithstanding the IAA's advice to daa to address this issue within the Coordination Committee as necessary ahead of any future declaration which require to take account of the 32mppa Conditions.
128. Passenger volumes for almost ten full months of calendar year 2024 were thus regulated by the W23 and S24 Decisions, without daa suggesting that the 32mppa Conditions should be taken into account. For reasons of national law which do not arise for resolution by the Court on this reference for a preliminary ruling, daa is not now permitted to challenge the Winter 24 Decision on the basis that it fails to ensure a sufficiently low level of passenger access to the terminals during November-December 2024 which would be adequate to compensate for daa's failure to act earlier in time to avoid a breach of the 32mppa Conditions. Any such breach would be substantially attributable to passenger volumes during January-October 2024.
129. For the IAA to have declared coordination parameters for Winter 24 with a view to avoiding an anticipated annual overage resulting from the preceding 10 months of 2024 (governed by the W23 and S24 Decisions) would have had no basis in the Slot Regulation, which requires coordination parameters to be adopted on a seasonal basis. Such a course of action would also have resulted in the large-scale permanent withdrawal of 40% of Winter seasonal historic slot series, series which fit within a correctly specified winter seasonal seat cap coordination parameter to take account of the 32mppa Conditions.
130. daa chairs the Coordination Committee which, pursuant to Article 5(1)(a) Slot Regulation, was obliged to "make proposals concerning or advise" the IAA "on ... the coordination parameters to be determined in accordance with Article 6...." Neither daa nor the Coordination Committee made any such proposals or gave such advice to the IAA. Nonetheless, the IAA proceeded to discharge its obligations under Article 6(1), and declared coordination parameters for Winter 24. On this account, for reasons of national law which do not arise for resolution by the Court on this reference for a preliminary ruling, daa is not entitled to impugn the Winter 24 Decision and complain that the coordination parameters actually declared are invalid.
131. For reasons of national law which do not arise for resolution on this reference for a preliminary ruling, daa is also not permitted to contend that the correct interpretation of the 32mppa Conditions is that they relate to (outturn) passenger throughput, when daa previously made submissions to the IAA in response to the Draft Winter 24 Decision that the 32mppa Conditions "of course" relate only to capacity, and not to throughput.
132. In any event, if the correct interpretation of the 32mppa Conditions is that they relate to capacity, then forecasts as to throughput are not a relevant metric for measuring compliance with the 32mppa Conditions. On the other hand, if the correct interpretation of the 32mppa Conditions is that they relate to throughput, then it is impossible for the IAA to control throughput by means of declaring capacity limits at the terminals, where throughput is a function of the number of seats sold by airlines to passengers (and a function of whether daa keeps Dublin Airport open and available for use by airlines). In challenging the Winter 24 Decision, daa wrongly conflates the distinct concepts of: (a) taking account of "relevant constraints" in declaring coordination parameters; and (b) taking appropriate measures to reduce outturn passenger throughput sufficient to ensure compliance with the 32mppa Conditions. Ensuring compliance with national planning and development law is not the IAA's function under the Slot Regulation, and the Winter 24 Decision does not mandate a breach of the 32mppa Conditions. It is not the case that, once the 32mppa Conditions have any bearing on capacity at Dublin Airport, then the IAA must set coordination parameters so as to guarantee that nothing above 32mppa is possible.
133. The PATM seat cap declared in the Winter 24 Decision tended towards a possible maximal, rather than minimal approach, having regard to Article 6(3) Slot Regulation, and was sufficient to permit full re-allocation of historic slot entitlements arising from W23.
134. For reasons of national law which do not arise for resolution on this reference for a preliminary ruling, daa is not permitted to rely on arguments and evidence not submitted to the IAA prior to the Winter 24 Decision, including that the 32mppa Conditions formed part of an environmental impact assessment carried out in accordance with the EIA Directive.
135. In any event, an examination of the planning history underpinning the development consents establishes that the 32mppa Conditions are not in fact derived from an EIA, and were not imposed for the purpose of mitigating identified likely effects on the environment. The duty of sincere co-operation under Art.4(3) TEU does not arise, on the facts.
136. Whether or not the DALAP 2006 was the subject of a strategic environmental assessment completed in accordance with the SEA Directive is not an issue which daa has pleaded in its challenge to the Winter 24 Decision, is not an issue which daa raised before the IAA prior to the making of that decision, and cannot now be relied upon by daa to impugn the Winter 24 Decision for reasons of national law which respectfully do not arise for resolution on this reference for a preliminary ruling.
137. Under national law (section 8(5) State Airports Act 2004), daa is responsible for managing and operating Dublin Airport. In its Terms of Use in respect of the airport, daa asserts that air carriers operate at Dublin Airport with the consent of daa, and daa controls whether Dublin Airport is open or closed at any particular point in time. Traditionally, for example, daa closes Dublin Airport on Christmas Day each year. There is nothing in either national or EU law (including the Slot Regulation) which would prevent daa from imposing an extended closure period (a measure which daa itself proposed ahead of the Winter 24 Decision), should daa consider such a measure to be necessary to ensure compliance with the 32mppa Conditions by achieving a reduction in passenger throughput in the terminal buildings. Neither is daa precluded from proposing such a measure with a view to encouraging co-operation by airlines with a potential Local Guideline (provided for in Articles 5 and 8 Slot Regulation) which might be designed to produce compliance with the 32mppa Conditions.
138. It is therefore incorrect for daa to suggest that the setting of coordination parameters and slot allocation are the only means by which the number of passengers using the terminals can be controlled. It is equally incorrect for daa to suggest that control over who is entitled to land or take off at Dublin Airport rests exclusively with the IAA and ACL.
139. As a matter of reality, daa's challenge to the Winter 24 Decision cannot now, in any event, affect the question of its compliance with the 32mppa Conditions in 2024.
VII. Questions referred for a Preliminary Ruling
2. If the answer to question 1 is yes, does Article 6(1) of Regulation 95/93, and insofar as relevant Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, permit Member States to make a determination of the parameters for slot allocation at a coordinated airport for a particular scheduling period which results in the non-allocation of some series of slots (or certain components thereof) to which air carriers would otherwise be entitled in accordance with the terms of Article 8(2)?
3. If this arises for consideration strictly as a result of the Court's answers to questions 1 and 2, does the Slot Regulation prohibit Airport Management Bodies within the meaning of the Slot Regulation from taking unilateral action to close the airport for a period of time, for the purpose of preventing the operation of slots which have been allocated by the Airport Coordinator so as to avoid a breach of an annual limit of passengers of the type mentioned in Question 1?
Annex I
The within reference relates to six sets of proceedings pending before the Irish High Court:
(i) daa plc v Irish Aviation Authority, Airport Coordination Limited, Aer Lingus Limited, Ryanair Designated Activity Company, Emerald Airlines Ireland Limited and Air Transport Association of America, Inc. (trading as Airlines for America), Delta Air Lines, Inc., JetBlue Airways Corporation and United Airlines, Inc. (Record No. 2024/920 JR)
(ii) Aer Lingus Limited v Irish Aviation Authority, daa plc, Airport Coordination Limited and Air Transport Association of America, Inc. (trading as Airlines for America), Delta Air Lines, Inc., JetBlue Airways Corporation and United Airlines, Inc. (Record No. 2024/927JR)
(iii) Ryanair Designated Activity Company v Irish Aviation Authority, daa plc, Airport Coordination Limited and Air Transport Association of America, Inc. (trading as Airlines for America), Delta Air Lines, Inc., JetBlue Airways Corporation and United Airlines, Inc. (Record No. 2024/928JR)
(iv) Aer Lingus Limited v Irish Aviation Authority, daa plc and Airport Coordination Limited (Record No. 2024/1296JR)
(v) Air Transport Association of America, Inc. (trading as Airlines for America), Delta Air Lines, Inc., JetBlue Airways Corporation and United Airlines, Inc. v Irish Aviation Authority and daa plc, Airport Coordination Limited, Ryanair Designated Activity Company, Aer Lingus Limited and Emerald Airlines Ireland Limited (Record No. 2024/1297JR)
(vi) Ryanair Designated Activity Company v Irish Aviation Authority, daa plc and Airport Coordination Limited (Record No. 2024/1299JR)
The parties are represented as follows:
(i) daa - Matheson, 70 Sir John Rogerson's Quay, Grand Canal Dock, Dublin 2 (Irish Solicitors), Brian Kennedy SC, Fintan Valentine SC, Aoife Carroll SC and Emma Synnott BL (Irish barristers)
(ii) Irish Aviation Authority - Mason, Hayes & Curran, South Bank House, Barrow Street, Dublin 4 (Irish Solicitors), Eoin McCullough SC, Margaret Gray SC, Mark Murphy BL and Francis Kiernan BL (Irish barristers)
(iii) Airport Coordination Limited - Vincent & Beatty LLP, 67 Fitzwilliam Square North, Dublin 2 (Irish Solicitors), Darren Lehane SC and Niamh O'Donnabhain BL (Irish barristers)
(iv) Aer Lingus Limited - McCann Fitzgerald, Riverside One, Sir John Rogerson's Quay, Grand Canal Dock, Dublin 2 (Irish Solicitors), Suzanne Murray SC and Conor Quinn BL (Irish barristers)
(v) Ryanair Designated Activity Company - Arthur Cox, Ten Earlsfort Terrace, Dublin 2 (Irish Solicitors), Martin Hayden SC, Frank Crean SC and John Kenny BL (Irish barristers)
(vi) Air Transport Association of America, Inc. (trading as Airlines for America), Delta Air Lines, Inc., JetBlue Airways Corporation and United Airlines, Inc. (collectively known as the "A4A Parties") - Arthur Cox, Ten Earlsfort Terrace, Dublin 2 (Irish Solicitors), Declan McGrath SC, Emily Egan McGrath SC and Barry Doherty BL (Irish barristers)
(vii) Emerald Airlines Ireland Limited - Flynn O'Driscoll LLP. 1 Grant's Row, Mount Street Lower, Dublin, D02 HX96 (Irish Solicitors)
Annex II
Council Regulation (EEC) No. 95/93 of 18 January 1993 on common rules for allocation of slots at Community Airports (OJ L 14, 22.1.1993), as amended by:
a. Regulation (EC) No 894/2002 of the European Parliament and of the Council of 27 May 2002 amending Council Regulation (EEC) No 95/93 on common rules for the allocation of slots at Community airports;
b. Regulation (EC) No 1554/2003 of the European Parliament and of the Council of 22 July 2003 amending Council Regulation (EEC) No 95/93 on common rules for the allocation of slots at Community airports
c. Regulation (EC) No 793/2004 of the European Parliament and of the Council of 21 April 2004 amending Council Regulation (EEC) No 95/93 on common rules for the allocation of slots at Community airports
d. Regulation (EC) No 545/2009 of the European Parliament and of the Council of 18 June 2009 amending Regulation (EEC) No 95/93 on common rules for the allocation of slots at Community airports
e. Regulation (EU) 2020/459 of the European Parliament and of the Council of 30 March 2020 amending Council Regulation (EEC) No 95/93 on common rules for the allocation of slots at Community airports (Text with EEA relevance)
f. Commission Delegated Regulation (EU) 2020/1477 of 14 October 2020 amending Council Regulation (EEC) No 95/93 as regards the temporary extension of exceptional measures to address the consequences caused by the COVID-19 pandemic (Text with EEA relevance);
g. Regulation (EU) 2021/250 of the European Parliament and of the Council of 16 February 2021 amending Council Regulation (EEC) No 95/93 as regards temporary relief from the slot utilisation rules at Union airports due to the COVID-19 crisis (Text with EEA relevance);
h. Commission Delegated Regulation (EU) 2021/1889 of 23 July 2021 amending Council Regulation (EEC) No 95/93 as regards the extension of measures for temporary relief from the slot utilisation rules due to the COVID-19 crisis
i. Commission Delegated Regulation (EU) 2022/255 of 15 December 2021 amending Council Regulation (EEC) No 95/93 as regards the extension of measures for temporary relief from the slot utilisation rules due to the COVID-19 crisis; and
j. Regulation (EU) 2022/2038 of the European Parliament and of the Council of 19 October 2022 amending Council Regulation (EEC) No 95/93 as regards temporary relief from the slot utilisation rules at Union airports due to an epidemiological situation or military aggression (Text with EEA relevance).