Mr Justice Barry O’Donnell agreed with Aer Lingus and Ryanair that the most efficient use of court time involves the parties and court dealing with the form of a potential reference ahead of the general hearing of the cases next week.
He said EU law points that have never before been clarified by the CJEU are “at the heart” of the airlines’ cases against the Irish Aviation Authority (IAA).
A reference to the court is “almost an inevitability”, he said.
National courts can refer questions on unclear European law to the CJEU whose interpretation is then binding throughout the EU.
Aer Lingus, Ryanair and Airlines for America, which represents US carriers, are challenging the IAA’s imposition of a passenger cap at Dublin Airport for the winter and summer seasons.
They claim there was no basis for it incorporating a 2007 planning condition, which contains a separate annual passenger cap, in its assessment of the airport’s capacity.
Earlier this month, Mr Justice O’Donnell acceded to the airlines’ urgent request to pause the effects of the IAA’s decision to limit passenger numbers to 25.2 million for the summer period, which runs from late March to October.
His order, which is due to last until the cases are resolved, came just days before the IAA cap was due to be applied to a process of allocating the airport’s summer take-off and landing slots.
Today, the judge said the airlines’ cases involve EU law issues that “have not been addressed before” and are not “acte clair”, meaning they are not clear enough to refrain from referring them to the CJEU. He said it seems clarity “can only be obtained by a reference” to the European court.
The substantial challenges to the IAA’s summer and winter passenger caps were due to be heard over four days from next Tuesday.
The judge agreed to push the hearing back to Wednesday, with the parties to first address him on Aer Lingus and Ryanair’s request for a CJEU reference.
Earlier, Mr Justice O’Donnell heard from Suzanne Murray, senior counsel for Aer Lingus, who argued that dealing with the reference question ahead of the substantial hearing was the most efficient use of time.
Barrister Frank Crean, for Ryanair, agreed with her reasoning, submitting that a reference in the cases is “inevitable” as the CJEU has never before interpreted the EU’s slot regulation, which imposes rights and rules regarding airlines’ take-off and landing slots at European airports.
The facts of the cases are not in dispute, so this is an appropriate situation for the court to refer EU law issues ahead of a full High Court hearing, he said.
The IAA and the operator of Dublin Airport, DAA, expressed concern that the reference issue could throw the substantial hearing off course.
In making its decisions 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.
The DAA has separately challenged the IAA’s 14.4 million seat cap for the winter period, running from now until March 2025, alleging it is not restrictive enough to prevent the airport from breaching the 2007 planning condition.
The operator has said the EU slot regulation prohibits it from “unilaterally” reducing passenger numbers to comply with the 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.
