Case C-120/10, European Air Transport SA

Member States can establish maximum noise levels, as measured on the ground, to be complied with by airlines overflying areas located near an airport

Case C-120/10, European Air Transport SA

In order to reduce noise pollution generated by aircraft using EU airports, Directive 2002/301 permitted Member States to adopt restrictive measures known as “operating restrictions’. Operating restrictions could be adopted only where certificated noise levels measured at source – that was the aircraft itself – were exceeded. More specifically, Directive 2002/30 took into account, in essence, the certificated noise levels of an aircraft. That noise certification was carried out according to a theoretical reference system of meteorological, geophysical and operational conditions. That reference system took into account the following parameters: sea level, ambient temperature, moisture content, approved soil characteristics and microphone height as well as flight path and flight data recorders.

Brussels-National Airport (Belgium) was located in the Région flamande (Flanders Region), although the flights operating from it also overfly the Région de Bruxelles-Capitale (Brussels-capital region) at a low height.

This case stemmed from a dispute between the airline European Air Transport (EAT) – specialising in operating cargo flights (DHL group) – and the Région de Bruxelles-Capitale (Belgium) and the Collège d’environnement de la Région de Bruxelles-Capitale.

On 19 October 2007, the competent regional authorities imposed an administrative penalty of €56 113 on EAT for exceeding, during the night, the limit values laid down in the rules of the Région de Bruxelles-Capitale. According to those rules, the limit values were measured on the ground.
The referring court inter alia asked whether the concept of “operating restriction” in Art. 2(e) of Directive 2002/30 must be interpreted as including rules imposing limits on noise levels, as measured on the ground, to be complied with by aircraft overflying areas located near the airport and providing that any person responsible for exceeding those limits might incur a penalty.

The Court held that operating restrictions were applicable only when any other noise management measures had failed to achieve the aims of Directive 2002/30, as laid down in Art. 1. Recital 10 in the preamble to that Directive stated that the balanced approach constituted a policy approach to address aeroplane noise, including international guidance for the introduction of operating restrictions on an airportby-airport basis. The “balanced approachto aircraft noise management, defined in Resolution A33-7, adopted by the 33rd ICAO Assembly, comprised four principal elements and required careful assessment of all different options to mitigate noise, including reduction of aeroplane noise at source, land-use planning and management measures, noise abatement operational procedures and operating restrictions, without prejudice to relevant legal obligations, existing agreements, current laws and established policies (Case C442/05 Commission v Belgium [2007]).

The Court held that an operating restriction within the meaning of Art. 2(e) of that directive concerned a prohibition on access to the airport in question, whether the prohibition was absolute or restricted.

However, environmental legislation, such as that at issue in the main proceedings, imposing limits on maximum noise levels, as measured on the ground, to be complied with by aircraft overflying areas located near the airport, did not itself constituted a prohibition on access to the airport in question.
The Court held that Article 2(e) of Directive 2002/30 must be interpreted as meaning that an “operating restriction” was a prohibition, absolute or temporary, that prevented the access of a civil subsonic jet aeroplane to a European Union airport. Consequently, national environmental legislation imposing limits on maximum noise levels, as measured on the ground, to be complied with by aircraft overflying areas located near the airport, did not itself constituted an “operating restriction” within the meaning of that provision, unless, in view of the relevant economic, technical and legal contexts, it could have the same effect as prohibitions of access to the airport in question.