A High Court judge has paused the effects of a Dublin Airport passenger cap that was due to imminently affect airlines’ access to take-off and landing slots over the summer 2025 period.
Aer Lingus, Ryanair and a consortium of American carriers last week brought an urgent application over the Irish Aviation Authority’s (IAA’s) decision to limit passenger numbers to 25.2 million for the period, which runs from late March to October.
The Monday court ruling comes just days before the passenger cap was due to be applied by slot coordinator ACL in its allocation of the airport’s summer period slots to airlines.
Giving his judgment, Mr Justice Barry O’Donnell said the airlines would suffer “immediate serious consequences” if he refused to pause the operation and implementation of the seat cap in the IAA decision.
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These consequences “extend beyond” the immediate serious effects for the airlines and include “serious disruption for the public and potential harmful effects for the broader economy”, he said.
The consequences of a potential breach of 2007 planning conditions– which were highlighted by the airport’s operator, DAA– do not outweigh the “highly probable and very serious adverse consequences” of failing to pause the decision.
His order will last until the airlines’ wider challenge to the IAA decision is determined.
In making its decision on the airport’s capacity, the IAA said it considered technical, operational, environmental and local planning constraints, including An Bord Pleanála’s imposition of a separate annual 32 million passenger limit when it approved Terminal Two in 2007.
Lawyers for Aer Lingus argued the 2007 planning condition was not a relevant consideration for the IAA in assessing the airport’s capacity. In applying it for the first time to its assessment of the winter 2024/25 season, the IAA departed from the status quo, said Paul Sreenan SC, instructed by McCann Fitzgerald solicitors.
The IAA was neutral on the airlines’ application but told the court it will stand over its decision at a full hearing of the airlines’ cases.
The DAA opposed the application, arguing it would facilitate a breach of the 2007 planning condition and expose the airport authority to enforcement action and potential criminal sanction.
The operator told the court it operates in a “heavily regulated environment” and is prevented by the European Union’s (EU) slot regulation from “unilaterally” reducing passenger numbers to comply with the 2007 planning condition.
The DAA has separately applied to the local planning authority, Fingal County Council, seeking an increase of the 32 million limit to 40 million.
Central to the application for a pause to the summer 2025 cap, was the airlines’ argument that they have a right under EU law to “historic” slots. The court heard last week that these slots work on a “use them or lose them” basis, meaning 80 per cent of them must be availed of in a season to secure them again the next year.
The airlines argued some of their slots would be permanently lost if they could not be utilised next year due to the IAA’s cap.
Ryanair’s barrister, Martin Hayden SC, told the court the loss of historic Dublin Airport slots would hamper his client’s right to retain such corresponding slots at 67 other European destinations.
Dominic McGrath SC, for Airlines for America, a group representing US carriers, said the IAA cap would create “very significant financial losses”.
In his ruling, Mr Justice O’Donnell said he does not accept that primary responsibility for complying with the 2007 conditions rests with anyone other than the DAA.
He said his order “does not (and cannot) suspend the effect of any planning conditions” and does not affect the planning authority’s entitlement to take whatever steps it deems necessary to ensure compliance.
The court was also not binding the DAA’s hand in relation to the steps it might take over concerns about the planning condition.
He said there is “no question” that the parties have raised serious legal issues to be examined at a full hearing of the cases. He said the balance of justice “overwhelmingly” supports pausing the IAA cap.
Aer Lingus and Ryanair are also legally challenging the IAA’s imposition of a 14.4 million seat cap over the winter period, which runs from now to March 2025. They have not asked the court to pause the effects of this cap.
The DAA is challenging this decision too, but it argues the cap is too lenient and will cause the airport to breach the binding 2007 planning condition. The court is due to hear those cases in December.
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