High Court strikes out Ryanair's special summons action, directing judicial review as the proper remedy for challenging the Commission's airport fee decision.

Neutral Citation Number: [2008] IEHC 278

THE HIGH COURT

COMMERCIAL

2008 No. 421SP

IN THE MATTER OF COUNCIL DIRECTIVE 96/67/EC OF 15 OCTOBER, 1996 ON ACCESS TO THE GROUND HANDLING MARKET AT

COMMUNITY AIRPORTS AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (ACCESS TO THE GROUND HANDLING MARKET

AT COMMUNITY AIRPORTS) REGULATIONS 1998

BETWEEN

RYANAIR LIMITED

PLAINTIFF

AND

COMMISSION FOR AVIATION REGULATION

DEFENDANT

AND

DUBLIN AIRPORT AUTHORITY PUBLIC LIMITED LIABILITY COMPANY

NOTICE PARTY

Judgment of Mr. Justice Kelly delivered the 8th day of August, 2008

Introduction

1. At the conclusion of a hearing on 22nd July, 2008, I struck out these proceedings and indicated that I would give my reasons in

writing for so doing at a later date. This I now do.

The Proceedings

2. The plaintiff (Ryanair) commenced this action by issuing a special summons on 21st May, 2008.

3. The proceedings relate to a decision (the decision) made by the defendant (the Commission) on 10th March, 2008. In the decision

the Commission permitted the notice party to charge certain fees in respect of check-in desks at Dublin Airport. The decision was

made pursuant to the European Communities (Access to the Ground Handling Market at Community Airports) Regulations (SI No. 505

of 1998) (the Regulations).

4. Ryanair seeks “an order overturning the decision of the defendant dated the 10th March, 2008”.

5. The proceedings were transferred to the Commercial List and leave was given to the Commission to bring the application the

subject matter of this judgment. The Commission asks to have the action struck out because, it alleges, it has been improperly

brought. It contends that the only remedy available to Ryanair in respect of its complaints is through the medium of judicial review.

Special Summons

6. Apart from a rather half hearted attempt to rely upon the non-compliance rule contained in O.124, r.1 of the Rules of the Superior

Courts, (which has no relevance), Ryanair’s sole justification for commencing this action by way of special summons is by reliance

upon the provisions of O. 3.(21) of the Rules of the Superior Courts.

7. That rule reads as follows:-

“Procedure by special summons may be adopted in the following classes of claims:

(21) any other proceeding which is required or authorised by law and for which no other procedure is prescribed by

these rules.”

8. The provisions of the immediately preceding sub-rule (O. 3.(20)) permit a special summons to be used in proceedings where

procedure by special summons is required or authorised by the Rules of Court. There is a whole series of proceedings ranging in

alphabetical order from the Attorneys and Solicitors (Ireland) Act 1849, to the Transport (Tour Operators) Act 1982, which fall within

the remit of this sub-rule. It is common case that procedure by special summons is neither required or authorised by the Rules of

Court for a challenge such as the one in suit, hence the reliance upon O. 3, r. 21.

9. In order to fall within the scope of O. 3, r. 21, Ryanair has to demonstrate that the proceeding is required or authorised by law and

that no other procedure is prescribed by the Rules in respect of its complaint.

10. As far as the proceedings being required or authorised by law, Ryanair contends that such arises by virtue of it being conferred

with a right of appeal pursuant to the Regulations. It contends that that right of appeal given by the Regulations is in conformity with

the obligations imposed on the State to implement Council Directive 96/67/EC of the 15th October, 1996 (“The Directive”).

11. The argument runs that as the Regulations give a right of appeal, Ryanair is authorised by law to institute proceedings in this

Court and as no other procedure is prescribed by the Rules, they fall within the ambit of O. 3, r. 21.

A Right of Appeal?

12. The Regulations came into force on the 16th December, 1998. Their purpose was to give legal effect in the State to the Directive

insofar as it relates to access to the ground handling market at community airports.

13. Originally the Regulations referred to the Minister for Public Enterprise but the Commission has been substituted for him

throughout.

14. Regulation 14 reads as follows:-

“14(1) Subject to the provisions of Regulations 7, 8, 9, 10 and 12, suppliers and self-handlers shall have access to airport

installations to the extent necessary for them to carry out their activities. If the managing body of an airport places

conditions upon such access, those conditions shall be relevant, objective, transparent and non-discriminatory. The

Commission shall be informed in writing of these conditions prior to their imposition.

(2) The space available for ground handling at an airport shall be allocated by the managing body of the airport among the

various suppliers and self handlers, including new entrants in the field, to the extent necessary for the exercise of their

rights and to allow effective and fair competition, on the basis of relevant, objective, transparent and non-discriminatory

rules and criteria.

(3) Where access to airport installations gives rise to the collection of a fee, the latter shall be determined by the

managing body of the airport and approved by the Commission in advance in accordance with relevant, objective,

transparent and non-discriminatory criteria.”

15. It is the Commission’s approval given pursuant to Regulation 14(3) which is the decision sought to be overturned by Ryanair in this

action.

16. Regulation 15 reads:-

“Any party with a legitimate interest shall have the right to appeal against the decisions or individual measures taken

pursuant to these Regulations.”

17. Regulation 16 reads as follows:-

“16(1) An appeal against decisions and individual measures taken by the managing body of an airport pursuant to these

Regulations may be made in writing to the Commission. The notice of appeal shall be served promptly and in any event

within one month from the date on which grounds for such appeal first arose.

(2) The appellant shall serve the notice of appeal on – (a) the Commission, and (b) the managing body of the airport

concerned.”

18. Regulation 16(3), (4) and (5) deal with procedural issues which are not relevant to this judgment.

19. Regulation 16(6) provides:-

“The Commission shall decide to – (a) dismiss the appeal, or (b) make such direction in relation to the decision or

individual measure concerned as it sees fit.”

20. The only remaining part of Regulation 16 which is relevant is subparagraph 10 which provides:-

“A decision of the Commission on an appeal under para. (1) shall be final save that an appeal from the decision shall lie to

the High Court on a specified question of law.”

21. Regulation 17, insofar as it is relevant, provides as follows:-

“(1) Whenever the Commission proposes to make a decision (other than in respect of an appeal to the Commission under

Regulation 16) pursuant to the these Regulations, it shall notify in writing the body to whom the decision relates of the

proposal and reasons therefore, and shall, if any representations are made within 28 days after the date of the notice,

consider the representations.

(2) Whenever the Commission, having considered the representations (if any) that may have been made, makes a

decision, it shall notify in writing the body to whom the decision relates accordingly, and that body may, within 21 days

after the date of such notice, appeal to the High Court against the decision on a specific question of law.

(3) On the hearing of an appeal pursuant to para. (2) The High Court…., may either confirm the decision of the

Commission, or may allow the appeal, and if the appeal is allowed, the Commission shall thereupon reverse or vary its

decision.”

22. From the above it is clear that under Regulation 14(3) the notice party had to seek approval in advance from the Commission

when it sought to collect a fee in respect of the check-in desks. It did so. The Commission by the decision granted its approval.

23. Under Regulation 17 the Commission was obliged to notify the body to whom the decision related, of its proposed decision and the

reasons therefor. The body to whom the decision related was clearly the notice party. The Commission was then obliged to receive

any representations within 28 days after giving notice of its proposed decision. When the decision was made, the Commission was

likewise obliged to give notice in writing to the body to whom the decision related and that body is, pursuant to Regulation 17(2),

given a right of appeal to the High Court against the decision on a specific question of law. A right of appeal against a Commission

decision is given under Regulation 17 only to “the body to whom the decision relates”. That body is the notice party. Indeed it is only

that body which is afforded the right of being heard prior to the Commission making a decision which affects it. The Regulations,

insofar as charges of the type in suit are concerned, confer no other right of appeal against Commission decisions concerning such

matters.

24. Regulation 16 sets out detailed procedures governing appeals against “decisions and individual measures taken by the managing

body of an airport”. Such appeals are heard by the Commission and, as I have already pointed out, an express right of appeal from

such decisions of the Commission lies to this Court on a specified question of law (see Regulation 16(10)).

25. The appeal, whose procedure is regulated by Regulation 16, is created by Regulation 15. It is clear that the appeal thus created

lies to the Commission in respect of “decisions or individual measures taken pursuant to these Regulations”.

26. That phrase, “decisions and individual measures” is repeated in Regulation 16 which governs the procedure for dealing with such

an appeal. “Decisions and individual measures” are different to what is contemplated in Regulation 14 and in particular, the collection

of a fee which is referred to at Regulation 14(3). The notice party is not competent to raise a fee in respect of airport installations

without proceeding to have the Commission approve of such a proposal under Regulation 17. Thus Regulation 14(3) is inter-related to

Regulation 17. Regulation 15 is inter-related to Regulation 16. The exclusion which is contained in Regulation 17(1), where it is made

clear that that Regulation does not apply in respect of an appeal to the Commission under Regulation 16, is also relevant.

27. Ryanair attempts to make the case that Regulation 15 creates, in effect, a free standing right of appeal which it is now seeking to

exercise.

28. I am unable to agree with this contention. The right of appeal which is created by Regulation 15 must be read in the context of

the two separate procedures which are described in Regulations 16 and 17. The appeal created by Regulation 15 is the one regulated

by Regulation 16. It is an appeal to the Commission. It is not to this Court save in the circumstances set forth at Regulation 16(10).

29. Further support for this view is to be had by asking the question – if Regulation 15 creates such a free standing right of appeal to

whom is such appeal to be made? Regulation 15 does not mention this or any court. It can hardly therefore create a free standing

right of appeal to the High Court. It is clear that the right of appeal created is to the Commission and that the procedure which has

to be followed is contained in the immediately succeeding Regulation, i.e. Regulation 16.

30. If Regulation 15 created a right of appeal to this Court, one would have expected it to say so. In all other instances where a right

of appeal to the courts is provided for in the Regulations, the court to which such appeal may be brought is specifically named.

31. For all of these reasons I am satisfied that no right of appeal was conferred on Ryanair by the Regulations in respect of the

decision in suit. Thus, the proceeding was not “required or authorised by law” so O.3.r.(21) of the Rules of the Superior Courts was

not applicable.

The Directive

32. Ryanair argues, quite correctly, that in interpreting the Regulations I ought to have regard to the wording and purpose of the

Directive so as to achieve the result envisaged by the Directive. That much is clear from the judgment of the Supreme Court in

Nathan v. Bailey Gibson Limited [1998] 2 I.R. 162. There Hamilton C.J. said:-

“It is also well established that national or domestic courts in interpreting a provision of national law designed to

implement the provisions of a Directive, should interpret their national law in the light of the wording and the purpose of

the Directive in order to achieve the result envisaged by the Directive.”

33. Ryanair argues that a right of appeal exists for it pursuant to the provisions of the Directive even if such is not apparent from the

Regulations whose wording “may not be ideal”. (See written submissions of Ryanair para. 10).

34. Particular reliance is placed upon Article 21 of the Directive which is headed “Right of Appeal”. It provides:-

“Member states or, where appropriate, managing bodies of airports shall ensure that any party with a legitimate interest

has the right to appeal against the decisions or individual measures taken pursuant to Article 7(2) and 11 to 16.

It must be possible to bring the appeal before a national court or a public authority other than the managing body of the

airport concerned and, where appropriate, independent of the public authority controlling it.”

35. The Commission strongly contests that this Article can be relied upon as creating the right of appeal which is now contended for

by Ryanair. It, inter alia, contends that when Ireland implemented the Directive by means of the Regulations it imposed an additional

layer of regulation not required by the Directives’ terms. If Ryanair has a right of appeal it is limited to a right to contest the

determination of the fee by the notice party and not by the Commission, it is said.

36. It is neither necessary nor appropriate for me to decide this issue. Indeed the fact that the question was raised at all simply

further underscores how inappropriate the special summons procedure is to deal with such an argument.

37. Whilst I am obliged to interpret the Regulations in the light of the wording and purpose of the Directive, so as to achieve the

result envisaged by it, I am not entitled to rewrite them.

38. If Ryanair does have a right of appeal, as it contends, it is not accommodated within the Regulations. It would, therefore, seem to

follow that the Directive has not been fully or properly implemented by the Regulations. That is a question that can only be decided

when the proper parties are before the court in proceedings which are properly constituted. They are not such at present.

39. If the Directive does confer this alleged right of appeal it is up to the organs of government other than the judicial one to decide

how this should be implemented. They must decide whether the right of appeal is to be to a public authority other than a court or, if

it is to be to a court, to designate the appropriate court.

40. All of the above emphasises how inappropriate the special summons procedure is for Ryanair’s complaint.

Judicial Review

41. The actual relief sought in these proceedings is “an order overturning the decision of the defendant dated the 10th March, 2008”.

42. The entitlement to make the decision was conferred by the Regulations. The relief which is sought is in effect an order quashing

that decision. That ought to be done by judicial review unless there is a clear statutory remit to make an order to quash of the type

sought. There is no such remit in the present case.

Further Action

43. When I struck out Ryanair’s proceedings, counsel on its behalf indicated that it intended at some stage in the future to apply for

leave to seek judicial review of the decision.

44. I was conscious of the fact that the Commission had a second motion for hearing in the event that it was unsuccessful in having

these proceedings struck out. Indeed I had read the papers for the second motion which sought an order pursuant to the inherent

jurisdiction of the court that Ryanair was estopped from raising the questions adumbrated in the special summons. The basis for this

argument was estoppel by omission. There have been no fewer than three earlier judicial review applications brought by Ryanair

against the Commission. Two were brought in 2005, and one in 2007. Two failed and one was withdrawn.

45. The Commission contended that Ryanair could have raised the issue now sought to be litigated in the earlier proceedings, but

chose not to do so. In the light of this I directed that should Ryanair seek to apply for judicial review in respect of the decision, it

must do so on notice to the relevant parties rather than by means of application ex-parte.

Disposal

46. The proceedings taken by Ryanair are not “required or authorised by law”. O.3.r.(21) of the Rules of the Superior Courts is not

applicable. The Special Summons procedure was wrongly used. Judicial Review is the appropriate medium for Ryanair’s complaint.

47. The Summons is struck out.