Ryanair Ltd v Commission for Aviation Regulaton
| Jurisdiction | Ireland |
| Judge | Mr. Justice Quirke |
| Judgment Date | 02 October 2006 |
| Neutral Citation | [2006] IEHC 291 |
| Docket Number | [No. 84 JR/2005] |
| Court | High Court |
| Date | 02 October 2006 |
[2006] IEHC 291
THE HIGH COURT
BETWEEN
AND
EC (ACCESS TO THE GROUND HANDLING MARKET AT COMMUNITY AIRPORTS) REGS 1998 SI 505/1998 REG 14(3)
EC (ACCESS TO THE GROUND HANDLING MARKET AT COMMUNITY AIRPORTS) REGS 1998 SI 505/1998 REG 14
AVIATION REGULATION ACT 2001 S9(2)
FLUGHAFEN HANNOVER-LANGENHAGEN GMBH v DEUTCHE LUFTHANSA AG C-363/01 2003 ECR I-11893
EC DIR 96/67/EC ART 16(2)
EC (ACCESS TO THE GROUND HANDLING MARKET AT COMMUNITY AIRPORTS) REGS 1998 SI 505/1998 REG 14(2)
EC DIR 96/67/EC ART 16(3)
SCROLLSIDE LTD T/A ZED FM v BROADCASTING COMMISSION OF IRELAND UNREP SUPREME 6.4.2006 2006 IESC 24
COMMISSION v ITALY C-460/02 2004 ECR I-11547
Judicial Review - Certiorari - Aer Rianta - Groundhandling charges - Onus of proof - Whether objectives of directive complied with as to relevance, objectivity, transparency and non discrimination - Council Directive 97/67 EC - European Communities (Access to the Groundhandling Market at Community airports) Regulations (SI No. 505 of 1998)
The applicant sought to challenge the decision of the respondent approving certain charges Aer Rianta sought to
impose on the applicant airline in respect of access to and rental of check in desks. The applicant contended that the
decision failed to comply with Article 14(3) of the Groundhandling Regulations, implementing Council Directive 97/67 EC,
requiring it to make its decision in accordance with relevant, objective, transparent and non- discriminatory criteria.
Held by Quirke J., that the respondent had made its decision in accordance with relevant, objective, transparent and
non- discriminatory criteria and no evidence to the contrary had been sufficiently adduced. The onus of proof on the
appliacnt had not been discharged and the claim was dismissed.
Reporter: E.F.
By order of the High Court (McKechnie J.) dated 31st January, 2005, the applicant was given leave to seek relief by way of judicial review including an order of certiorari quashing a decision made by the respondent on 6th October, 2004, whereby the respondent approved certain charges which Aer Rianta (hereafter "A.R.T.") sought to impose in respect of access to and rental of check-in desks at Dublin Airport.
The decision was made by the respondent pursuant to the provisions of the European Communities (Access to the Groundhandling Market at Community Airports) Regulations, ( S.I. No. 505 of 1998), (hereafter "the Regulations").
The statutory and other functions and responsibilities of A.R.T. have now been transferred to the Dublin Airport Authority (hereafter "D.A.A.").
Leave was granted on the grounds that in making its decision the respondent failed to comply with the provisions of Article 14(3) of the Regulations and in particular made its decision without applying"…relevant, objective, transparent and non-discriminatory criteria" as required by the Regulations and by Council Directive 97/67/EC (hereafter "the Directive"), on access to Groundhandling Market and Community Airports.
On the 16th December, 1998, the Directive was transposed into Irish law by the Regulations.
Regulation 14 of the Regulations provides as follows:
(1)Subject to the provisions of Regulations 7, 8 , 9, 10 and 12, suppliers and self-handlers shall have access to airport installations to the extent necessary for them to carry out their activities. If the managing body of an airport places conditions upon such access, those conditions shall be relevant, objective, transparent and non-discriminatory. The Minister shall be informed in writing of those conditions prior to the imposition.
(2) The space available for groundhandling at an airport shall be allocated by the managing body of the airport among the various suppliers and self-handlers including new entrants in the field, to the extent necessary for the exercise of their rights and to allow effective and fair competition, on the basis of relevant, objective, transparent and non-discriminatory rules and criteria.
(3) Where access to airport installations gives rise to the collection of a fee, the latter shall be determined by the managing body of the airport and approved by the Minister in advance in accordance with relevant, objective, transparent and non-discriminatory criteria."
The relevant Minister for the purposes of the Regulations was the Minister for Public Enterprise. The obligations and functions which were vested in the Minister by the Regulations were transferred to the respondent pursuant to the provisions of s. 9(2) of the Aviation Regulations Act,2001.
It is acknowledged on behalf of both parties that a check-in desk is an"installation" within the meaning of the Directive and of the Regulations and that a rent charged for the exclusive right to occupy a particular desk is a "fee" within the meaning of the Directive and of the Regulations — see Flughafen Hannover—Langenhagen GmbH v. Deutche Lufthansa AG, Case C-363/01.
Groundhandling services include services such as baggage sorting, de-icing, water purification and fuel distribution systems.
The respondent is responsible for the authorisation of groundhandling operations. It is the competent authority for approving the appointment of suppliers. Suppliers may be either
(a) "self-handlers", i.e suppliers who provide the ground handling service independently and who conclude "no contract of any description with a third party for the provision of such services…" or
(b)"third-party handlers", i.e. suppliers who provide the service pursuant to or with the assistance of a contract with another party.
Both self-handlers and third-party handlers require the approval of the respondent before they can provide groundhandling services.
During 2003, there were seventeen self-handlers and twenty three third party-handlers operating at Dublin Airport.
The objectives of the Directive and of the Regulations include the following;
(a) the elimination of restrictions on the freedom to provide groundhandling services within the European Community,
(c) an attempt to facilitate improvements in the quality of services to airport users by opening up that aspect of the air transport market and promoting the development of effective competition in that market.
The specific measures introduced to promote liberalisation of the groundhandling market at Irish airports includedinter alia (i), measures to limit the number of approved suppliers of each category of ground handling services in appropriate cases, (ii), a system requiring that suppliers obtain the approval of the respondent before supplying the services and (iii), the imposition of fees in relation to access to airport installations.
In April, 2004 A.R.T. submitted to the respondent an application seeking retrospective approval of certain charges in respect of access to airport installations at the three State airports in Dublin, Shannon and Cork.
In respect of Dublin Airport A.R.T. sought approval to levy charges at the level of €15,718 by way of an annual check-in desk rental and €20.90 for hourly check-in desk rental. These proposed charges represented increases from levels of €15,237 and €19.05 respectively, which had been in force since January, 2001.
In its submission to the respondent dated 8th April, 2004, A.R.T. statedinter alia that:
"Aer Rianta's proposed desk rental charges have their origin in charges which were set in January, 2001. The only adjustment made since then was a single C.P.I. adjustment applied in October, 2003."
It advised the respondent that when introducing its charges in January, 2001 it had considered a number of pricing options including:
"…the recovery of all costs together with a return on assets through rental charges for use of check-in desks - Full Recovery".
The partial recovery of costs through rental charges for use of check-in desks - "Implemented Charges".
It advised that it had estimated that an average charge per desk of approximately €86,000 annually could be applied to achieve full recovery of costs and earn a return on assets.
In relation to "implemented charges" it advised that:
"…conscious of the need to minimise the discontinuity for users in moving towards the charging levels required to effect full cost recovery (above) Aer Rianta opted to implement an initial set of annual charges for allocated desks and an annual charge for unallocated desks which were not based on full recovery."
Indicating that it had fixed annual charges of €15,237 per desk and hourly charges of €19.05 per desk in 2001 it explained that"charges at these levels were considered reasonable when compared with check-in desk charges at other airports at the time…".
Referring to the criteria to be applied by the Directive and by the Regulations A.R.T. submitted that:
"Aer Rianta's check-in desk rental fees meet the criteria of relevance, objectivity, transparency and non-discrimination viz;
•Relevance — the fee is logically connected to what is being provided in consideration of the fee. In this case the fee is being charged for check-in desks infrastructure to which access is being granted.
•Objectivity - the charge is set in the manner undistorted by any prejudice on the part of the price setter. In this case the fees were set following a process that recognised the need to minimise discontinuity for users rather than concentrating on the best interests of Aer Rianta only. (Adoption of the latter course would have resulted in Aer Rianta implementing a much higher charge to cover all...
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