Authors: Anna Masutti and Yohan Saparamadu
The Council of the International Civil Aviation Organisation (the ICAO Council) in 2004 adopted policies on airport charges that included the principles of cost-relatedness, non-discrimination and an independent mechanism for economic regulation of airports.
According to ICAO Council’s, an airport charge is a levy that is intended to recover the cost of providing facilities and services for civil aviation, while a tax is a levy that is intended to raise national or local government revenues which are generally not applied to civil aviation in their entirety or on a cost-specific basis.
As airport charges should be non-discriminatory, the Directive 2009/12/CE established a compulsory procedure for regular consultation between airport managing bodies and airport users with the possibility for either party to have recourse to an independent supervisory authority whenever a decision on airport charges or the modification of the charging system is contested by airport users. In order to ensure impartial decisions and the proper and effective application of this Directive, an independent supervisory authority should be established in every Member State.
Despite the terms of Directive 2009/12/CE, the EU Commission has received claims reporting the non-compliance of Italian airports of Milan, Rome and Venice with the Directive. With infringement procedure 2014/4187, the Commission contested the consultation procedure that aimed to regulate airport charges through contract agreements between airport management and the Italian Civil Aviation Authority (ENAC). The transposal of the Directive by Italy does not comply with the right of the airlines companies to request the intervention of an independent supervisory authority where a dispute concerning airport charges arises. Indeed one of the main issues which remains still open is that, even if an Independent Supervisory Authority has been established in Italy with Law Decree n. 201/2011 (i.e. “Autorità di Regolazione dei Trasporti”), the airports of Milan, Rome and Venice are not subject to its control on the matter of airport charges.
As the proceedings is still pending in its pre-litigation phase before the European Commission, little is known about the content of the procedure. We will soon see the observations the Italian government will submit on the matter pursuant to art. 258 of TFEU.