Free movement of transport services. The Court of Justice rules on the right of appeal against a decision to close the airspace

On 2 June 2022, the Court of Justice handed down its judgment in Case C‑353/20, Skeyes v Rayanair DAC, on the interpretation of Regulation (EC) No 550/2004. The request has been made in proceedings between the autonomous public undertaking Skeyes and the airline Ryanair DAC (“Ryanair”) concerning an urgent decision taken by the Tribunal de l’entreprise du Hainaut, division de Charleroi (Business Court of Hainaut, Charleroi division; the “referring court”).

Following several collective actions Skeyes, which had been designated as the air traffic services provider under Belgium’s responsibility, had to close the Belgian airspace due to a strike organized by the traffic controllers. Ryanair, therefore, addressed the referring court on a matter of utmost urgency demanding Skeyes to be ordered to ensure the normal operation of air traffic. The referring court accepted Ryanair’s request by means of an order imposing a 250,000 euros fine for every hour the Belgian airspace was closed due to the strike, whose effects were limited to the 16-24 May 2019 period.

Since Ryanair received the order on 16 May 2019, after the Belgian airspace had been reopened, and since there were no new closures until 24 May 2019, the latter ceased to produce its legal effects without the sanction having been applied. Skeyes, therefore, objected the 16 May 2019 order before the referring court which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to refer to the Court of Justice two questions for a preliminary ruling.

By the first question, the referring court asked whether Article 8 of Regulation no. 550/2004 should be interpreted as giving airspace users, such as airlines, an effective right of appeal before national courts against the air traffic service provider, in order to subject to judicial review the alleged violations of the obligation to provide services imposed on the latter in the exercise of its public service prerogatives.

According to the Court, an airspace user holds certain rights under Article 8 of Regulation No. 550/2004, and must therefore be considered as potentially harmed by an airspace closure decision taken by an air traffic service provider. Furthermore, the Member State concerned is free to choose whether to give an administrative judge the power to rule on a dispute or to grant such competence to civil courts, or even both, according to the rules on the powers’ distribution established by it, provided that such rules do not make practically impossible or excessively difficult to exercise the rights conferred by EU law.

By the second question, the referring court asked whether Regulation no. 550/2004, read in the light of its recital 5, as well as Article 58(1) TFEU and Article 16 of the Charter, must be interpreted as excluding the application of the competition rules provided for by the TFEU to the provision of air navigation services related to the exercise of public authorities’ prerogatives, as provided for by the regulation, as well as those relating to the rights and freedoms of airspace users, such as the freedom to provide services and the free enterprise.

According to the Court, although the provision of air navigation services, linked to the exercise of public authorities’ prerogatives, does not have an economic nature justifying the application of the competition rules provided for by the TFEU, this does not mean that airspace users are thus deprived from enjoying the rights and freedoms recognized under EU law, such as the free movement of services with regard to transports provided for by Article 58(1) TFEU.

Marco Stillo