International Air Transport Association & Anor, R (on the application of) v Department for Transport

When deciding whether to request accelerated or expedited treatment of a reference to the Court of Justice, the court may consider the practical consequences of delay, including serious risks to the viability of affected businesses, the public importance of the services involved, the existence of criminal penalties, the apparent strength of the challenge, and the operational preparations required before the relevant measure takes effect.

Commercial non-parties who voluntarily provide evidence to obtain a commercial advantage should ordinarily bear their own costs, particularly where they have not formally intervened.

The claimants sought judicial review concerning the validity of EC Regulation 261 of 2004. Permission had been granted and the two claims were being dealt with together. At a preliminary hearing, the court considered the terms of a proposed reference under Article 234 EC, including whether to request priority or accelerated consideration by the Court of Justice under Articles 55 and 104A of its Rules of Procedure.

The court also considered whether two commercial organisations, ERA and ADL, should be permitted to file witness evidence and who should bear the associated costs.

1. The court decided to make a reference under Article 234 EC. The precise terms were embodied in a separate form of reference.
2. Although the decision on priority or exceptional urgency belonged to the President of the Court of Justice, the national court could identify circumstances capable of justifying expedition. Relevant considerations included the significant and real risk of serious financial damage to airlines, the restrictive approach to damages for invalid legislation described in Bergaderm v the Commission [2000] ECR 1-5291, and the public importance of continued airline viability.
3. The court also attached weight to the fact that domestic implementation was expected to involve criminal penalties. Where the validity of a provision carrying criminal penalties was genuinely in issue, there was a strong case for determining validity before criminal proceedings arose.
4. The apparent strength of the challenge based on Article 251 EC, assessed for the purpose of deciding expedition and without determining the validity issue itself, supported an expedited hearing. The court also considered the need for airlines to make substantial internal management arrangements before the Regulation came into force.
5. The evidence from representatives of ERA and ADL was relevant to proportionality and assisted the court on accelerated expedition. Permission to rely on it was granted.
6. Commercial enterprises that voluntarily incur costs to participate in proceedings for their own legitimate commercial advantage should ordinarily do so at their own risk and expense. The evidence was not treated as part of the first claimant’s case for costs purposes, and the Department for Transport was not placed at risk of paying those costs. ERA and ADL were ordered to bear their own costs.

First-instance judicial review proceedings in the Administrative Court. The judgment records no prior appellate decision.