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26 July 2006
On May 9 2005 the Council of State ruled on the much-disputed legality of the noise regulations set by the Brussels-Capital Region (for further details please see "Belgium Divided on Aviation Noise Regulations").
Belgium is a federal country and most aircraft departing from or landing at Brussels-National airport (a federal enclave in the Flemish region) must overfly the Brussels-Capital region, which adopted a decree setting noise norms for flights over its territory on May 27 1999. However, unlike the federal norms, the limits set by the Brussels-Capital region are not based on the International Civil Aviation Organization's Annex 16. In 1999 several airlines, airline associations and the airport of Brussels filed three petitions for the annulment of the decree, challenging its legality before the French and Dutch-speaking chambers of the council.
Since 1999 the implementation of the decree has resulted in the imposition of numerous fines on airlines by the regional authorities. Most of the decisions have been appealed before the council on various grounds, all of which rest on the legality of the decree and the fines imposed in accordance with it.
After more than six years of dispute the council has ruled on the legality of the decree. In September 2005 the French and Dutch-speaking representatives of the Public Ministry filed contradictory opinions on the issue; the council therefore chose to rule in general assembly, a rare procedure aimed at maintaining the unity of its case law.
The council confirmed the legality of the decree in two of the three cases before it. However, the rulings are limited to the legal issues referred to in the parties' arguments, namely:
The council ruled that:
A third case is still pending, but its outcome is likely to be the same.
Among the arguments raised by airlines when challenging fines on the basis of the decree is the question of the administrative nature of the fines, which the airlines claim are criminal measures; this, they claim, should entitle them to procedural safeguards which have not been granted to date.
Fined airlines usually challenge the impartiality of the regional administration which imposed the fines and argue that the administration infringed its own rules in respect of the report on the breach of the norms. In addition, airlines often claim that compliance with the norms depends on factors beyond their control, such as air traffic control instructions and meteorological conditions.
The ruling does not mark the end of proceedings before the council to challenge the fines. Further steps on the part of the region to enforce payment could result in new appeals before the courts, where new arguments could be raised.
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Pierre D Frühling