About this case:

• Citation:
  [2024] IEHC 624
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Barry O'Donnell

Delivering judgment for the High Court, Mr Justice Barry O’Donnell opined: “The potential consequences of a potential breach of the planning conditions does not outweigh the highly probable and very serious adverse consequences of failing to grant a stay in these proceedings. Those consequences extend beyond the immediate serious effects on the applicants, but include serious disruption for the public and potential harmful effects for the broader economy.”

Background

The applicant airlines brought three sets of judicial review proceedings against the “Final Decision on Summer 2025 Coordination Parameters at Dublin Airport” (the S25 decision) of the Irish Aviation Authority (IAA) to implement a Passenger Air Traffic Movement (PATM) seat cap at Dublin Airport Terminals 1 and 2 of 25.2 million passengers commencing on 30 March 2025 and continuing until 25 October 2025.

The decision was adopted under the IAA’s powers pursuant to Council Regulation (EEC) 95/93, as amended (the Slot Regulation) and under the Aviation Regulation Act 2001, as amended.

The decision had regard to conditions of planning permission relating to the terminals which was granted to Dublin Airport Authority (DAA) by An Bord Pleanála. The planning conditions required that the combined capacity of the terminals would not exceed 32 million passengers per annum unless otherwise authorised by a further grant of planning permission (the 32mppa conditions).

The applicants’ complaint included inter alia that under the legislation providing for the IAA’s relevant functions, the IAA was not entitled to have regard to the planning conditions in making its decision.

The applicants applied to the High Court for a stay on the part of the S25 decision relating to PATM seat cap pending the outcome of their judicial review proceedings, on the basis that they would otherwise suffer permanent and irreparable harm.

The application was urgent in circumstances where a slot allocation deadline was due to take effect on 7 November 2024, meaning the notice party, Airport Coordination Limited, would be required to complete the airport coordination and publish a list of confirmed slots by way of a Slot Allocation List which would be very difficult to alter once published.

The DAA resisted the stay on the basis that the stay would effectively operate as a mandatory order requiring the DAA to operate Dublin Airport in breach of the 32mppa conditions.

The High Court 

Highlighting at the outset that in order to determine which parts of the S25 decision should be stayed some consideration of the legal issues arising was required, Mr Justice O’Donnell warned that nothing in his judgment was to be taken as a finding or determination of the substantive issues in the proceedings.

The court set out inter alia the relevant provisions of the Slot Regulation, finding that the impugned decision arose from IAA’s exercise of its function as the competent authority in Ireland for the purposes of Article 6:

The court explained that in broad terms, the Slot Regulation is directed towards ensuring that where capacity is constrained in a Community airport, the available landing and take-off slots are distributed efficiently and fairly. 

Noting that capacity is constrained at Dublin Airport and so it is designated as a “level 3” coordinated airport, the judge explained that the IAA first raised a question with the DAA of whether the 32mppa conditions might be a relevant constraint for the purpose of coordination parameters in 2018, and made the S25 decision (and an earlier 2024 decision) on the basis that the 32mppa conditions were a “relevant constraint” under the Slot Regulation.

The applicants contended inter alia that the 32mppa conditions do not constitute “relevant technical, operational and environmental constraints” for the purposes of Article 6(1) of the Slot Regulations and as such, the IAA acted unlawfully and contrary to the Regulations.

Having further regard to the Slot Regulation, Mr Justice O’Donnell considered that airlines could retain their slots where they could demonstrate 80% usage of a series of slots, failing which the slots would be placed in a slot pool.

The High Court considered that there was “a measure of consensus” that if the stay was not granted, this would result in the loss of historic slots for most of the applicants, for which there was no restoration mechanism available if the applicants were to succeed. The court also noted that a combination of Articles 8b and Article 11 of the Slot Regulation strongly suggested that claims for damages are not available in respect of the discharge of the IAA’s functions under the Slot Regulations. 

As to the test to be applied in determining the stay application, Mr Justice O’Donnell stated that “Where what is being challenged is a national measure – even where the measure is taken pursuant to EU law – then, absent a challenge to the EU law that subtends the national measure, applications for interim measures are governed by national law”, finding that the test in Okunade v. Minister for Justice Equality and Law Reform [2012] 3 IR 152, rather than Joined Cases C-143/88 and C-92/89 Zuckerfabrik Suderdithmarschen AG v. Hauptzollamt Itzehoe [1991] ECR I-415 EU:C:1991:65, applied.

Having regard to the evidence given on behalf of the airlines as to the potential impact of the decision, including greater economic impact, interference with their property rights in their historic slots, financial losses, losses of market share, losses of employees, increased passenger fares and reputational damage arising from cancellations, the court determined that the harm likely to be suffered by the applicants would not be adequately compensated by an award of damages if they were to succeed in their cases.

Furthermore, the court did not accept that primary responsibility for complying with the 32mppa conditions rested with any party other than the DAA, noting that any order would not suspend the effect of any planning conditions, nor could an order affect the entitlement of the planning authorities or the DAA to take whatever steps deemed necessary to address any concerns on part of the planning authorities regarding compliance with planning conditions.  

Mr Justice O’Donnell was not satisfied that the public interest in compliance with planning conditions asserted by the DAA outweighed the risk of very serious injustice attaching to the refusal of a stay. 

Conclusion

Accordingly, the High Court granted a stay on the PATM element of the S25 decision pending the determination of the proceedings or further order.

Aer Lingus & Ors v. Irish Aviation Authority [2024] IEHC 624