Advocate General clarifies Skeyes' continuity obligation

On 13 January 2022, Advocate General Rantos delivered his Opinion in the framework of the preliminary ruling procedure initiated by the Tribunal de l’Entreprise du Hainaut of Charleroi, Belgium in the dispute between Skeyes and Ryanair regarding Skeyes' decision to close the Belgian air space following a shortage of staff.

On several occasions, Skeyes decided to close the Belgian air space due to a shortage of staff. Many actors in the sector, among which Brussels Airport, groundhandlers and airlines challenged these decisions before various Belgian courts on the basis that this shortage was caused by social conflicts and long overdue mismanagement.

In this regard, Ryanair also launched a national procedure before the Tribunal de l’Entreprise du Hainaut of Charleroi. Ryanair having obtained penalty payments in summary proceedings and by default, Skeyes lodged an objection before the same Tribunal.

In the framework of this dispute, the Belgian Tribunal submitted two preliminary questions to the Court of Justice of the EU. These related to the potential judicial remedies in case of a failure to fulfil the obligation to provide services by the air traffic services provider and to the application of the European rules that prohibit hindrances to the freedom to conduct business and the freedom to provide services to an autonomous public undertaking charged with air traffic navigation services.

Parties involved in the dispute

Skeyes is an autonomous public company exclusively in charge of air traffic control, training of operational and technical staff in compliance with Regulation (EC) No. 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky.

Ryanair, the low-cost carrier headquartered in Ireland, operates numerous flights in Belgium, notably at Brussels and Brussels South Charleroi Airports.

Relevant facts underpinning the case at national level

On 16 May 2019, Ryanair lodged an action before the Tribunal de l’Entreprise du Hainaut of Charleroi invoking that harm was caused to it by Skeyes. Concretely, it sought interim relief on grounds of extreme urgency following the closure of the Belgian airspace due to staff shortages that resulted from a collective action by Skeyes personnel. In that regard, it was not the first time that closures of the Belgian airspace had occurred following social unrest and a recurring lack of sufficient air traffic controllers.

The Tribunal then decided that Skeyes had to reopen the Belgian airspace, the latter risking penalty payments for non-compliance with the decision that was rendered by default. Although ultimately no financial penalties were imposed, Skeyes challenged the Tribunal’s order through third-party proceedings – since it was not part of the initial unilateral action lodged by Ryanair – claiming that the Tribunal had no jurisdiction to assess the case. According to Skeyes, since it serves a public function of air traffic controller and is an autonomous public company subject to a different set of rules, the Tribunal was not competent. Skeyes additionally put forward that, since it had the discretionary power of regulating the Belgian airspace, judicial review of its decisions is not permitted. Ryanair thus lacked the subjective right of lodging the action in the first place.

The request for a preliminary ruling

On 31 July 2020, the Tribunal submitted two questions in its request for a preliminary ruling to the Court of Justice of the EU aimed at clarifying the contours of the discretionary powers invested in, and as invoked by, Skeyes to close the Belgian airspace. In particular, the Tribunal, following a request by Skeyes, referred the following questions to the Court of Justice:

• Must Regulation (EC) No. 550/2004 mentioned above be interpreted as meaning that it authorises the Member States to remove from review by the courts of that Member State any alleged failures to fulfil the obligation to provide services by the air traffic services provider, or must the provisions of that Regulation be interpreted as meaning that they require the Member States to provide an effective remedy against any such alleged breaches, account being taken of the nature of the services to be provided?
• Must Regulation (EC) No. 550/2004 mentioned above be interpreted as excluding not only the rules on competition per se, but also any other rules applicable to public undertakings active on a market for goods and services, which have an indirect effect on competition, such as those prohibiting hindrances to the freedom to conduct business and the freedom to provide services?

Key takeaways of the Advocate General’s Opinion

• As a preliminary remark, the Advocate General acknowledges that Skeyes is authorised to apply a “zero rate” measure, which means that no aircraft may take off or land in, or transit through, the Belgian airspace or certain sectors of that airspace. In that sense, a closure of the airspace can indeed be justified for safety reasons (e.g. extreme weather conditions, act of terrorism, adjustments to air traffic control systems and installations, etc.) according to the Advocate General. However, air safety cannot be invoked for a "zero rate" measure when its origin is exclusively attributable to the air navigation service provider, such as organisational difficulties resulting in a shortage of air traffic controllers. Finally, the decision of an air navigation service provider to close the airspace must remain subject to judicial review.
• In determining which courts have jurisdiction, the Advocate General points out that this matter is governed by the national legal order of the Member State concerned since no European legislation on the matter exists. In this context, the existence of a mechanism for administrative review of the air traffic controller's activities (via the Council of State) should not be a substitute for effective judicial review nor deprive a carrier of any judicial remedy. National judges must thus be able to adopt interim measures to ensure the full effectiveness of a forthcoming judgment concerning subjective rights, invoked on the basis of EU law.
• Although air navigation services are not subject to competition law according to Regulation (EC) No. 550/2004, it does not exclude the application, in respect to providers designated to supply air navigation services, of the rules applicable to public undertakings operating in a market for goods and services, such as those prohibiting hindrances to the freedom to conduct business and the freedom to provide services.

Next steps in the proceedings?

The Opinion will now serve as guidance for the Court of Justice when responding to the submitted preliminary questions on how to delineate the set of obligations autonomous public undertakings such as Skeyes are subject to and on the legal remedies that can arise from it. Although Opinions by the Advocates General are followed in the vast majority of cases, European judges retain the freedom to divert from them.

The preliminary ruling by the Court of Justice is expected to be delivered in about six months.

The Tribunal will then have to decide the dispute between Skeyes and Ryanair in light of the Court's findings.