The 32 million passenger cap at Dublin Airport is legally sound, an adviser to Europe’s top court has said, raising pressure on Minister for Transport Darragh O’Brien to enact new laws to eliminate the restriction.
In an opinion handed down on Thursday at Court of Justice of the European Union (ECJ) in Luxembourg, advocate general Manuel Campos Sánchez-Bordona said an annual passenger limit imposed by planners may be taken into account when allocating airport slots.
“In his view, compliance with the limit of 32 million passengers a year can be classified as one of the operating constraints,” the court said.
The opinion comes days after O’Brien secured Cabinet agreement to prepare legislation to scrap the cap, a move that comes after two successive years in which State airport operator DAA has breached the restriction.
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Enforcement action was suspended for two years last April pending litigation.
Sánchez-Bordona hands down advisory opinions to the European court. Although the advocate general’s opinions are not binding on the court, they are influential and are often followed by the judges in their formal rulings. The ruling in this case is expected within months.
The Minister promised to have legislation enacted by the end of this year to remove the cap altogether. Airlines have pressed him to move faster because they fear losing airport slots to comply with the cap.
The legal challenge against the cap was initiated in the High Court in Dublin by Ryanair, Aer Lingus and the Airlines for America trade body. The Irish court sent questions relating to European regulations on airport slots to the Luxembourg court.
The advisory opinion said the technical, operational or environmental factors affecting airport capacity are not only physical or material factors, but also the legal constraints imposed by the rules which affect the airport’s use.
“The fact that the constraint in question comes from a State planning authority does not mean that it ceases to be an operational constraint. What is decisive is that it restricts airport ‘operational capacity’,” said the court.
“It is therefore a relevant factor for the objective analysis of the possibilities of accommodating the air traffic.”
The opinion went on to say historical slots were not property rights, but authorisation to use airport infrastructure. As a result, they “cannot be granted in disregard of the airport’s capacity” as defined in the flight co-ordination parameters.
“Nor does the elimination or reduction of those slots in order to comply with the capacity of the airport compromise the freedom to conduct a business.”
At the same time, Sánchez-Bordona found a question relating to the power of airport managers to order closure of the airport to comply with the cap was inadmissible.
“If it should be found to be admissible, the advocate general submits that closure of the airport in order to comply with a requirement known well in advance would be an excessively drastic and detrimental measure not provided for in the regulation,” the court said. “The regulation contains mechanisms to avoid such a measure.”
