General ban on operation of night-time flights removed

Introduction
Facts
Decision

Introduction

The Administrative Supreme Court recently ruled on the possibility to operate night-time flights for civil purposes over Italian national territory, issuing a milestone decision that put an end to a 20-year regulatory dispute.

According to the court, flying aircraft at night over Italy poses no risk. The decision means that Italian airports now have parity with those located in other EU member states and has removed the negative effect that the ban had had on competition.

Facts

The starting point for the regulatory dispute was Presidential Decree 476/1999, which placed a general ban on the operation of night-time flights to and from civil airports between 11:00pm and 6:00am with the exception of aircraft that:

• complied with the requirements set out in Annex 16 (environmental protection) of the Chicago Convention 1944; and
• were used to perform state, healthcare or emergency flights or operations at Rome Fiumicino and Milan Malpensa airports.

In addition, mail cargo flights and delayed flights could be authorised by special decrees from the Ministry of the Environment following consultation with the Ministry of Transport and the aviation authorities.

Presidential Decree 476/1999 was challenged by the managing company of Rome Fiumicino airport before the Administrative Court (TAR), which called for the general ban on civil aircraft operating night-time flights to be overturned. TAR upheld the claim (Decision 1320 of 25 January 2017) and removed the ban on operating civil aircraft at night.

However, TAR's decision was challenged by the Ministry of Transport and the Ministry of Environment before the Administrative Supreme Court. The arguments raised by the ministries to support their request to re-establish the ban on night-time flights were based substantially on ensuring consistency with EU Directive 2002/30/EC regarding "the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports" and its implementing provisions contained in Legislative Decree 13/2005.

Decision

Administrative Supreme Court Judgment 1534 dated March 2019 rejected the ministries' claim and instead considered the first-instance decision to be correct and grounded. In particular, the court found that a prohibition on night-time flights would be acceptable only in the context of a regulatory procedure to:

• apply flight restrictions in specific cases of environmental noise pollution or actual or serious threat of health damage;
• address the circumstances of local and territorial realities;
• assess the possibility of implementing noise pollution reduction measures; and
• exclude the application of alternative measures to meet fixed targets.

The Administrative Supreme Court also stated that a different approach (ie, a general ban on night-time flights) would conflict with the main aims of EU Directive 2002/30/EC and Legislative Decree 13/2005 (ie, the protection of the free circulation of people and goods and a ban on restricting business activities, unless by proportionate and balanced measures to deal with noise problems at national airports).

For further information on this topic please contact Laura Pierallini at Studio Legale Pierallini e Associati by telephone (+39 06 88 41 713) or email (l.pierallini@pierallini.it). The Studio Legale Pierallini e Associati website can be accessed at www.studiopierallini.it.