Introduction

Capacity issues at European airports have become a major problem due to the increasing number of airlines and airspace users. Traditionally, when demand surpasses the available capacity and an airport ‘is congested’, a government or the airport itself would invest in either a new airport or new infrastructure within the existing airport, such as new terminals or new runways. That being said, the increasing amount of environmental protection measures make it a challenge, impossible even, to invest in new runways, not to mention a new airport. This makes it even more challenging to manage the ever-increasing demand. It also shows that certain compromises have to made within the industry for the sake of environmental protection.

In the Netherlands, Amsterdam Schiphol Airport has an environmental cap, which limits the aircraft movements to 500,000 per annum. The 500,000 ceiling was established by the Alders Agreement in 2008, and this cap expired in 2020.

In 2022, the Dutch Government announced its plans to further lower the cap to 440,000 movements by late 2024, which would mean that the airport would have to reduce capacity by 60,000 flights per annum. The rationale behind the new cap stems from the environmental agenda of the airport, as it would lead to the reduction of NOx and noise emissions. The Dutch Government also adopted an intermediary reduction goal of 460,000 for the Winter 2023 / 2024 season, from November 2023 to October 2024. This is also referred to as the temporary measure.

The reduction plans were seen as a ‘victory’ by the communities surrounding Schiphol. As local residents in the vicinity of Schiphol have reportedly been concerned about the impact of the airport operations on their health but also on the environment surrounding the airport and on the climate in general. That being said, the airlines operating within Schiphol did not share these sentiments, and were highly critical about the reduction goal of 460,000 that would take effect between November 2023 to October 2024.

KLM Royal Dutch Airlines (KLM), joined by airlines such as Delta Air Lines, easyJet, and TUI, has taken the Dutch Government to court to fight against the temporary measure. They argued that the unilateral decision to reduce capacity at Schiphol is incomprehensible given the fact that airlines have made “multi-billion euros investments to meet near and long-term goals in line with their own decarbonization trajectories, as well as government policies”. KLM further argued that the given measure violates international law and EU law.

Violation of EU Law: The Balanced Approach

With regards to EU law, the plaintiffs argued that the Balanced Approach was not respected. Balanced approach is a concept that has been introduced by the International Civil Aviation Organization (ICAO) by Resolution A 33/7, which proceeds by identifying the noise issue at a specific airport, and further analyses the measures that may be available to reduce the noise problem. The plaintiffs also argued that the temporary measure violates the EU – US Open Skies Agreement, and the EU – Canada Air Transport Agreement.

The EU has transposed the Balanced Approach within its legal system through Regulation (EU) 598/2014. It defines ‘Balanced Approach’ as the:

“process developed by the International Civil Aviation Organization under which the range of available measures, namely the reduction of aircraft noise at source, land-use planning and management, noise abatement operational procedures and operating restrictions, is considered in a consistent way with a view to addressing the noise problem in the most cost-effective way on an airport-by-airport basis”.

The Balanced Approach requires the reduction of noise by exploring the 4 principal elements: reduction of noise at source (1), land-use planning and management (2), noise abatement operational procedures (3) and operating restrictions (4). While exploring means to reduce noise emissions, the four principles or measures should be considered in a consistent and cost-efficient manner, as provided by Article 2(3) of Regulation (EU) 598/2014.

Under Article 5 of Regulation (EU) 598/2014, Member States are required to “ensure that the Balanced Approach is adopted in respect of aircraft noise management at those airports where a noise problem has been identified”. While doing so, Member States must ensure that the available measures for noise reduction are identified, the cost-effectiveness of the mitigation measures are thoroughly evaluated, and that the stakeholders are consulted in a transparent manner on the intended actions. Furthermore, as per Article 6 of Regulation (EU) 598/2014, if there is a need for an operating restriction to mitigate a noise pollution problem, the competent authorities are required to consult interested parties in a timely and substantive manner. Interested parties include representatives of aircraft operators which may be affected by noise-related actions. Lastly, under Article 8 of Regulation (EU) 598/2014, if competent authorities aim to introduce an operating restriction, they must give a six months’ notice to the European Commission and relevant interested parties. The notification must include an explanation as to why the operating restriction is being introduced, the noise abatement objective established for the airport in question, but also the measures that were considered to meet the noise abatement objective, and cost-effectiveness of the measures that are being introduced. Therefore, it is evident that Regulation (EU) 598/2014 establishing the Balanced Approach requires Member States to comply with procedural requirements under EU prior to introducing any noise related operational restrictions.

With respect to the Balanced Approach, the airlines argued that this procedure was not followed, and hence the measure violated EU law. The District Court of Haarlem ruled in favour of this argument. The judge contending that the government cannot disregard procedural requirements under EU law, and precisely under Regulation (EU) 598/2014, hence emphasizing the primacy of EU law. On 5 April 2023, the District Court of Haarlem, which had jurisdiction to hear the case, ruled that the temporary measure introduced by the Dutch Government violated EU law, precisely the Balanced Approach rule, and hence could not be operationalised for 2024.

Conclusion

This ruling shows that environmental action at Member State level must be compliant with procedural requirements under EU law, and precisely lex specialis that regulates environmental action within a specific industry. This also shows that noise measures can be adopted, but that Member States cannot do so without disregarding requirements under EU law.