Federation of Tour Operators & Ors, R (on the application of) v HM Revenue & Customs & Ors

On 6 December 2006, the Chancellor of the Exchequer announced, in his Pre-Budget Report (referred to as the “PBR”), the doubling of Air Passenger Duty (“APD” or “the Duty”) with effect from 1 February 2007, only 7 weeks later. Unlike airlines, tour operators, who sell package holidays, were largely precluded, by the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the Package Travel Regulations”), from passing the increase on to those of their travelling customers who had already booked their holidays. The tour operators immediately brought this to the attention of the Government. The Government however refused to postpone or to modify the introduction of the increase in the Duty. The increase has been given effect by the Finance Act 2007, which received the Royal Assent on 19 July 2007.

In these proceedings, the Claimants, the Federation of Tour Operators (“the FTO”), the trade association that represents the major UK tour operators, and two representative tour operators, contend that the increase in APD was unlawful, and that the Duty itself has always been unlawful. They contend:

The Treasury contends that none of these grounds of challenge is well founded. It contends that Article 15 of the Chicago Convention has no application to APD; that in any event the European legislation relied upon by the Claimants does not apply to APD; that the increase in APD did not infringe the Claimants’ Convention right under A1P1; and its imposition and increase did not and do not infringe Article 49 of the EC Treaty.

Her Majesty’s Revenue and Customs is responsible for the collection of the Duty. It was joined as an Interested Party, but has not taken a separate part in these proceedings on the basis that its case is adequately represented by the Treasury.

The Speaker of the House of Commons intervened because of the Claimants’ reliance in these proceedings on evidence given to Committees of the House and on a report of the Treasury Select Committee. It was submitted on his behalf that their reliance on these matters in these proceedings involved a breach of Article 9 of the Bill of Rights and the wider principle of Parliamentary privilege.

Although the decision to impose APD dates from 1994, no point has been taken by the Treasury on the Claimants’ delay in bringing proceedings to challenge its original imposition. Of course, no proceedings could then have been brought in this Court challenging the tax under the European Convention on Human Rights, since the Human Rights Act 1998 did not come into force until October 2000. Similarly, the challenge based on Article 15 of the Chicago Convention could not have been brought until its alleged incorporation into our municipal law by Article 14 of the Service Provision Regulation (EC) No. 550/2004, which came into force on 20 April 2004. Proceedings could, however, have been brought challenging the Duty under Article 49 of the European Treaty.

This was a rolled-up hearing, i.e. a hearing of the Claimants’ application for permission to apply for judicial review, with the substantive hearing to follow immediately if permission was granted. The parties adduced comprehensively the evidence on which they relied (the evidence to which the Speaker objected being considered de bene esse) and made their submissions on all the issues in the case. It is evident that the Claimants’ claim is arguable, and permission to apply for judicial review will therefore be granted. I consider below whether their case for judicial review is made out.

APD was introduced by section 28 of the Finance Act 1994. It provided:

Air passenger duty

28(1) A duty to be known as air passenger duty shall be charged in accordance with this Chapter on the carriage on a chargeable aircraft of any chargeable passenger.

(2)

Subject to the provisions of this Chapter about accounting and payment, the duty in respect of any carriage on an aircraft of a chargeable passenger –

(a)

becomes due when the aircraft first takes off on the passenger’s flight, and

(b)

shall be paid by the operator of the aircraft.

(3)

Subject to section 29 below, every aircraft designed or adapted to carry persons in addition to the flight crew is a chargeable aircraft for the purposes of this Chapter.

(4)

Subject to sections 31 and 32 below, every passenger on an aircraft is a chargeable passenger for the purposes of this Chapter if his flight begins at an airport in the United Kingdom.

(5)

In this Chapter, “flight”, in relation to any person, means his carriage on an aircraft; and for the purposes of this Chapter, a person’s flight is to be treated as beginning when he first boards the aircraft and ending when he finally disembarks from the aircraft.

Although the Duty is payable by the operator of the aircraft, where the flight ticket has been purchased otherwise than as part of a package airlines’ standard terms normally permit the operator to recover the duty, and any increase in it, from the passenger, and in practice it normally does so.

Where in the case of a scheduled flight the ticket has been purchased by a tour operator as part of a package holiday, the contract between the operator of the aircraft and the tour operator will normally provide for the cost of the duty to be passed on to the tour operator. Similarly, in the case of a charter flight arranged by a tour operator, the charter contract will normally require the tour operator to bear the cost of the APD payable in respect of the passengers. If the tour operator is itself the flight operator, it will necessarily bear the liability for payment of the Duty.

However, unlike a flight operator, the ability of a tour operator to pass on the cost of APD or any increase in APD is constrained by regulation 11 of the Package Travel Regulations 1992:

Price revision

11.

— (1) Any term in a contract to the effect that the prices laid down in the contract may be revised shall be void and of no effect unless the contract provides for the possibility of upward or downward revision and satisfies the conditions laid down in paragraph (2) below.

(2)

The conditions mentioned in paragraph (1) are that—

(a)

the contract states precisely how the revised price is to be calculated;

(b)

the contract provides that price revisions are to be made solely to allow for variations in:—

(i)

transportation costs, including the cost of fuel,

(ii)

dues, taxes or fees chargeable for services such as landing taxes or embarkation or disembarkation fees at ports and airports, or

(iii)

the exchange rates applied to the particular package; and

(3)

Notwithstanding any terms of a contract,

(i)

no price increase may be made in a specified period which may not be less than 30 days before the departure date stipulated; and

(ii)

as against an individual consumer liable under the contract, no price increase may be made in respect of variations which would produce an increase of less than 2%, or such greater percentage as the contract may specify, (“non-eligible variations”) and that the non-eligible variations shall be left out of account in the calculation.

Some tour operators include a “no surcharge guarantee” in their conditions of contract. They of course could not pass on to their customers any increase in APD taking effect after the date of their contract. But even where their conditions of contract permitted a tour operator to pass on to its customers any increase in APD taking effect after the date of their contract, they could not do so in respect of customers whose holidays began less than 30 days after the announcement of the increase. In addition, in respect of other customers who have entered into a contract, the tour operator has to bear the first 2 per cent of the increase in costs. In many cases the increase that is the subject of these proceedings would have been less than 2 per cent, or insignificantly more than 2 per cent, and in those cases too the practical effect of the Regulations was to impose the financial burden of the increase, or the major part of it, on tour operators.

APD was introduced by the Finance Act 1994. It was first announced by the then Chancellor in his budget statement of 30 November 1993, and was originally due to come into force in October 1994. The duty was set at £5 for departures to the UK and the European Union and £10 for departures to other destinations. Its implementation was, however, postponed following representations by the FTO and its members. In a letter dated 15 December 1993 to the then Paymaster General, Alan Flook, the Secretary General of the Tour Operators’ Study Group, the forerunner of the FTO, stated:

“… the package travel market is extremely price sensitive. Small increases in relative prices produce substantial decreases in tourism arrivals. Our immediate concern however is for a postponement until at least 1^st November 1994. This would coincide with the majority of package holiday brochures, which run from 1^st May to 31^st October (summer) and from 1^st November to 31^st April (winter).

Summer 1994 brochures have been published since August 1993. The recently introduced Package Travel Regulations make it a legal and practical impossibility to alter prices in published brochures. These regulations require tour operators to absorb the first 2 % of any increases in prices. Thus, in nearly every case, the duty could not legally be passed to consumers until 1^st November 1994. The Regulations also make it extremely difficult, if not impossible, to alter published prices without a full reprint. As there are probably almost 100 million brochures in circulation and 800 tour operators and 7000 travel agents, you will appreciate that the cost and complexity of making the necessary price changes is effectively ruled out.

…

It is a feature of the package travel industry that profit margins are extremely slim. Civil Aviation Authority figures reveal that 1% to 2% is perfectly normal. The introduction of this duty without the ability to pass the extra cost to consumers will result in major problems for tour operators.”

On 31 January 1994, Customs & Excise issued a news release which stated:

“The Paymaster General, the Rt Hon Sir John Cope MP, announced in the House of Commons today that the Chancellor of the Exchequer has decided that the date of introduction of air passenger duty should be deferred one month to 1 November 1994. The Government will table an amendment to the Finance Bill for approval by Standing Committee.

Commenting, the Paymaster General said, ‘The Government has agreed to the change following representations from holiday tour operators who are concerned that most summer holiday brochures were published before the Budget announcement of the new duty and run to the end of October 1994. A large number of holidays have already been sold for October 1994 and many tour operators cannot recover air passenger duty on these sales because of ‘no surcharge’ guarantees in brochures.

We accept it would be unreasonable to expect tour operators to take the theoretical possibility of this new duty into account when they made their guarantees, and so the Government has agreed to a special concession in 1994, to accommodate tour operators. The delay will also give airlines one further month to prepare for the new duty.”

The italics have been added. The italicised words are relied upon by the Claimants.

The Paymaster General replied to Mr Flook by letter dated 8 February 2004:

“I have now considered further the difficulties you described for tour operators if air passenger duty commenced on 1 October 1994, given that most brochures had been published before the Budget for holidays up to the end of October 1994. I recognise that there was no hint of the possibility of a tax on air travel at the time that brochures were published and “no surcharge guarantees” were offered for summer 1994, and that October is a difficult month for tour operators’ cash flow.

I accept that it would be unreasonable to expect tour operators to have taken the theoretical possibility of this new duty into account when they made their guarantees. I am pleased to be able to let you know that I therefore announced in the House of Commons on 31 January that the government intends to offer a special concession for 1994 and defer the start date of the new duty to 1 November 1994. We will table an amendment to the Finance Bill for approval by Standing Committee.

In deciding upon 1 November as the new start date, I took into account that this was the date suggested by most holiday tour operators who made representations to the Government on this particular aspect of the new duty, while balancing the revenue effects of delaying the implementation date.”

Thus, as a result of the decision to defer, the duty was introduced on 1 November 1994, 11 months after it had been announced.

On 26 November 1996, an increase in the rate of APD was announced in the Budget Statement. The change did not come into effect until 11 months later, on 1 November 1997. The then Chancellor told Parliament:

“Those increases will not come into effect until 1 November 1997, … the very good reason for delaying until November 1997 is to give tour operators time to reflect these new rates in the prices they publish in their holiday brochures.”

Further changes to the rates of APD were announced in the budget statement of 21 March 2000. They took effect over a year later, on 1 April 2001.

As mentioned above, in the present case, the increase was announced on 6 December 2006 to take effect on 1 February 2007, just seven weeks later. The Duty was increased as follows:

It can be seen that, on a package holiday to a resort in the EU costing £500, the tour operator would have to bear the entirety of the increase in APD for a tourist class passenger (as most are) who had already booked his holiday, since the increase did not exceed 2 per cent of the price. On a long-haul pre-booked holiday, assuming a price exceeding £750, the tour operator would have to bear a larger sum: for example, on a holiday costing £1,500, it would have to bear the entirety of the increase in APD for a tourist class passenger, and all except £10 for a premium economy or higher class passenger.

The Claimants and others immediately protested and made their complaints known. Andrew Cooper, the Director General of the FTO, wrote to the Chancellor of the Exchequer on 7 December 2006. He stated:

“The travel industry takes bookings for holidays many months in advance of departure, and it is our calculation that there are already some four million holidays sold by the travel industry with departure dates after 1^st February 2007.”

He referred to the provisions of the Package Travel Regulations and continued:

“In consequence, in relation to the four million bookings already taken, tour operators will be obliged to absorb the whole amount of the increase in Air Passenger Duty, and will be unable to pass any of this on to their customers.

Previous governments, both on introducing the Air Passenger Duty and making changes to the rates have recognised this booking profile, and have allowed sufficient time to mitigate the impacts of forward booking. Clearly the implementation of significantly higher rates of tax on less than two months notice does not achieve that objective, at a time where tour operators in particular are already significantly under pressure in relation to their incomes.

We appreciate that this was unlikely to be the intentional desire of Government, and are writing to ask as a matter of urgency if you could give consideration to some form of relief in relation to travel arrangements already booked, either by providing an exemption in relation to bookings already made – assuming some suitable mechanism for notifying these can be found within HM Revenue and Customs or by allowing tour operators to retrospectively charge their customers the additional costs which have been incurred by the change.

Final balances on holiday departures in early February are already due from customers, and in consequence, we would be very grateful if urgent consideration be given to this request.”

As a result of this and other representations, a meeting was held on 11 December 2006 between civil servants and industry representatives. Those present included, on the Government side, Edward Troup, the Director of Business and Indirect Taxes in HM Treasury, Beth Russell, the Head of Environment and Transport Taxes and Martin Johnson of that division, and officials from HMRC. The industry representatives included Mr Cooper of the FTO, Danny Bernstein, the Chairman of the British Air Transport Association, Keith Williams, the Chief Financial Officer of British Airways, Barry Humphreys of Virgin Airways, Jonathan Crick from Monarch Airlines (which is involved in charter flights), and representatives of non-UK airlines. The Treasury minute records that Mr Johnson set out background information on the decision to increase APD. He referred to the environmental issues, including climate change, and continued:

“Therefore the Government have decided that further action should be taken now, and that APD increases have a role to play in aviation meeting its environmental costs.

PBR and Budget decisions take into account all relevant policy factors. Clearly there are operational issues related to APD, which were taken into account but balanced against factors such as revenue and environment.

In striking that balance Ministers came to the view that a 1 February date for the rate change was appropriate. Though obviously where there are administrative or operational issues you want to discuss, we, along with HMRC colleagues, are happy to do that.”

Mr Troup then said that:

The PBR policy decision was quite clear – Ministers had decided that the change would apply to flights on or after 1 February and this was fixed.

Ministers had taken into account all factors, including operational factors, but:

HMRC/HMT were very open to discussing administrative or operational issues.

Mr Bernstein opened up for the industry. Among the points he made were the following:

“Overall airlines expected there might be some change to APD, however did not expect a doubling of rates

Also extremely disappointed/surprised about the 1 February date for the change. Believes the only sensible way that airlines could collect this extra (for those who have booked) is at the airports. But an almost ‘impossible burden’ on the industry.

In the past significant notice 9-12 months had been given on changes. Suggested that an accommodation is found for people who booked before PBR day.”

Mr Crick made the point that this was the first time that changes have been introduced “retrospectively” and companies would need to go back to customers to ask for more money. That was extremely difficult since customers had purchased on the basis of advertised prices with tax included. Mr Hylton of British Airways referred to previous cases in which the government had decided to defer an implementation date for a change in taxation. The examples he gave included the introduction of APD in 1994.

“Retrospectively” was put in quotation marks in the Treasury minute because the government representatives did not agree that the changes were retrospective. The minute states:

“We do not agree changes are retrospective. They were announced on 6 December to take effect from 1 February. However, we accept that some customers will have booked flights for after 1 February, before PBR day. Furthermore previous changes have been made in the same way without concession for those who had already booked at the time of announcement (though of course it was less of an issue).”

Mr Cooper, who represented not only UK but also EU tour operators, is recorded as making the following points:

“Although people are now typically buying later now earlier (sic), there are still significant numbers of people who have bought packages for after 1 Feb, 2007. Among the tour operators this amounts to 4m people, of which 2.7m after 1 May, and 1.3m between 1 Feb and 1 May. Of those between Feb and May, he said that around half were going to non-EU destination. Of those after May, around a third were to non-EU destination.

Values of this are £17m ‘winter’, and £27m ‘summer’. Only limited double counting here with airline figures.

Highlighted the fact that UK regulations mean that operators can only reclaim tax increases above 2% of the value of the package sold. This will not be the case with the APD increments – so unlike airlines, operators have no means to recoup the money. This at a time when the sector is recovering from a ‘truly dreadful’ summer, although First Choice had recently announced some promising figures.

Incoming travellers, having booked with non-UK operators, would also be impacted on their return journey.”

After further representations the note records:

“Edward (Troup) then thanked people for their comments and brigaded the points made into three areas:

(i)

the decision to double the rates

(ii)

the 1 February start date, and;

(iii)

the (Virgin Atlantic) issue of whether the banding descriptions were fit for purpose – which we could follow up in the coming months.

On the issue of the start date, Edward said that nothing the airlines had raised today was a surprise to HMT and those issues had been taken into account when making the decision.

He also asked those present to confirm the view that whether it was 1 February, 1 March or 1 April made little difference. Key issue was whether it was before or after the key summer season. No one questioned this.

He then invited further specific questions/comments.”

Mr Hylton said:

“We need to know asap about the decision as systems need to be changed to ensure new rates are payable. Edward stressed that BA and others should change systems now (i.e. immediately after PBR) as the decision was fixed and final.”

At the close of the meeting, Mr Troup:

“assured (the representatives) that their views would be relayed to Ministers, but reiterated the firm position, as per the PBR day announcement, and the introductory key messages above.”

There was a smaller meeting between Mr Troup and Ms Russell, among others, on the Government’s side and representatives of the Association of British Travel Agents on 12 December 2006. Similar points to those put forward on the previous day were made on both sides.

On 31 January 2007, Herbert Smith, the solicitors for the FTO, sent a letter before claim to the Chancellor of the Exchequer. It stated:

“Our client’s immediate concern is about the timing of the implementation of the increase in APD, although our client also considers that APD is itself unlawful in any event.”

The grounds of challenge to the increase in the tax and the tax itself were broadly those advanced before me. On the following day, 1 February 2007, the increase in APD duly took effect. The Treasury replied to Herbert Smith by an undated letter received on 14 February 2007. The only concession offered was that for February only payment of the increase would be deferred for one month. The Government introduced a Parliamentary resolution under the Provisional Collection of Taxes Act 1968 to bring the increases into effect. As mentioned above, the increases were subsequently enacted in the Finance Act 2007, which received the Royal Assent during the course of the hearing. The parties had sensibly agreed that this case should be argued on the assumption that the legislation had already been enacted; in the event, the assumption was unnecessary.

It is common ground that the implementation of the increases in APD with effect from 1 February 2007, with no exception for bookings made before 6 December 2006, cost the members of the FTO some £40 to £50 million. APD at the increased level realises about £2 billion per year for the Exchequer. Thus the financial consequences of the claims made in these proceedings are very substantial indeed.

Because it has been the subject of legislation, the Claimants’ challenges have been necessarily confined to those applicable to an Act of Parliament. It follows, for example, that they cannot challenge the decision to increase APD on the grounds for judicial review that would be available if that decision had purely been a decision of the Executive. Most significantly, they have been unable to challenge the decision to increase APD with effect from 1 February 2007 on the ground that the Government failed to take into account a material consideration, namely the provisions of the Package Travel Regulations restricting the ability of package holiday operators to recover the duty from their customers. Thus the challenges to APD and its increase have been based on European law, which takes precedence over municipal law, and the European Convention on Human Rights, incompatibility with which would result in a declaration of incompatibility and in remedial legislation.

I turn to consider the heads of challenge to APD and its increase.

Although in 1944 the Second World War was still raging in Europe and in Asia, the USA and other states had in mind to foster the post-war development of civil aviation. The following account is taken from the website of the ICAO:

“The consequence of the studies initiated by the US and subsequent consultations between the Major Allies was that the US government extended an invitation to 55 States or authorities to attend, in November 1944, an International Civil Aviation Conference in Chicago. Fifty-four States attended this Conference end (sic) of which a Convention on International Civil Aviation was signed by 52 States set up the permanent International Civil Aviation Organization (ICAO) as a means to secure international co-operation and the highest possible degree of uniformity in regulations and standards, procedures and organisation regarding civil aviation matters. At the same time the International Services Transit Agreement and the International Air Transport Agreement were signed.

The most important work accomplished by the Chicago Conference was in the technical field because the Conference laid the foundation for a set of rules and regulations regarding air navigation as a whole which brought safety in flying a great step forward and paved the way for the application of a common air navigation system throughout the world.

Because of the inevitable delays in the ratification of the Convention, the Conference had signed an Interim Agreement, which foresaw the creation of a Provisional International Organization of a technical and advisory nature with the purpose of collaboration in the field of international civil aviation (PICAO). This Organization was in operation from August 1945 to April 1947 when the permanent ICAO came into being. Its seat was in Montreal, Canada and in 1947 the change from PICAO to ICAO was little more than a formality.”

The original signatories and parties to the Chicago Convention were the majority of independent states in existence in 1944. Today, the great majority of states are parties to it. As appears from the above extract, the ICAO is an international treaty organisation. The parties to the Chicago Convention are members of the ICAO.

The Third Preamble to the Convention recorded:

“… the undersigned governments having agreed on certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that international air transport services may be established on the basis of equality of opportunity and operated soundly and economically.”

When adopted and signed on 7 December 1944, the Convention was in English. French and Spanish texts were adopted by the Protocol on the Authentic Trilingual Text of the Convention, signed in Buenos Aires in 1968. Russian was added by the Protocol signed in Montreal on 30 September 1977. As amended, the final paragraph of the Convention provides that all four languages are of equal authenticity.

Despite the lofty hopes expressed at the Convention, it did not introduce freedom of the skies. Although Article 5 provided for the right of non-scheduled flights to make flights into or in transit non-stop over the territory of contracting States, and to make stops for non-traffic purposes, Articles 6 and 7 provided:

“Article 6

Scheduled air services

No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.

Article 7

Cabotage

Each contracting State shall have the right to refuse permission to the aircraft of other contracting States to take on in its territory passengers, mail and cargo carried for remuneration or hire and destined for another point within its territory. Each contracting State undertakes not to enter into any arrangements which specifically grant any such privilege on an exclusive basis to any other State or an airline of any other State, and not to obtain any such exclusive privilege from any other State.”

“Stop for non-traffic purposes” is defined by Article 96 as “a landing for any purpose other than taking on or discharging passengers, cargo or mail”.

The English text of Article 15 is as follows:

“Airport and similar charges

Every airport in a contracting State which is open to public use by its national aircraft shall likewise, subject to the provisions of Article 68, be open under uniform conditions to the aircraft of all the other contracting States. The like uniform conditions shall apply to the use, by aircraft of every contracting State, of all air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation.

Any charges that may be imposed or permitted to be imposed by a contracting State for the use of such airports and air navigation facilities by the aircraft of any other contracting State shall not be higher,

(a)

As to aircraft not engaged in scheduled international air services, than those that would be paid by its national aircraft of the same class engaged in similar operations, and

(b)

As to aircraft engaged in scheduled international air service, than those that would be paid by its national aircraft engaged in similar international air services.

All such charges shall be published and communicated to the International Civil Aviation Organization: provided that, upon representation by an interested contracting State, the charges imposed for the use of airports and other facilities shall be subject to review by the Council, which shall report and make recommendations thereon for the consideration of the State or States concerned. No fees, dues or other charges shall be imposed by any contracting State in respect solely of the right of transit over or entry into or exit from its territory of any aircraft of a contracting State or persons or property thereon.”

Article 68, to which Article 15 refers, provides:

“Each contracting State may, subject to the provisions of this Convention, designate the route to be followed within its territory by any international air service and the airports which any such service may use.”

At the same time as the Chicago Convention, two other international agreements were concluded. The International Air Services Transit Agreement, known as the Two Freedoms Agreement, was entered into by most of the States that entered into the Chicago Convention. Only 5 States were signatories to the International Air Transport Agreement, known as the Five Freedoms Agreement, and the USA dropped out of that Agreement, preferring to conclude bilateral agreements with other States. The Two Freedoms, granted by each contracting State to the others, are the privilege to fly across its territory without landing and the privilege to land for non-traffic purposes. The Five Freedoms were the Two Freedoms plus:

“(3)

The privilege to put down passengers, mail and cargo taken on in the territory of the State whose nationality the aircraft possesses;

(4)

The privilege to take on passengers, mail and cargo destined for the territory of the State whose nationality the aircraft possesses;

(5)

The privilege to take on passengers, mail and cargo destined for the territory of any other contracting State and the privilege to put down passengers, mail and cargo coming from any such territory.”

Because the Five Freedoms Agreement is and was so limited in its signatories, and the Two Freedoms Agreement was and is so limited in its effect, I derive no assistance from them in construing Article 15 of the Chicago Convention.

In order to understand the issues between the parties, it is necessary to understand the distinction, which is common ground, between a charge and a tax. In this context:

“charges are levies to defray the costs of providing facilities and services for civil aviation while taxes are levies to raise general national and local government revenues that are applied for non-aviation purposes.”

(From the third recital to the ICAO’s Council Resolution on Taxation of International Air Transport, referred to below.)

The issue between the parties concerns the last sentence of Article 15. Both parties submitted that the meaning of Article 15 is quite clear, but their clear meanings differed from each other. The Claimants submit that the words “fees, dues or other charges” include a tax, such as APD, and that most passengers who pay it do so only for the right of exit from the territory of the UK, since they are flying from a UK airport to one abroad. The Treasury submits that the words “fees, dues or other charges” are restricted to charges, and do not include a tax, and therefore do not apply to APD. Secondly, the Treasury relies on the word “solely”: it submits that APD is payable in respect of passengers flying to destinations within the UK, and is therefore not payable “solely” in respect of the right of transit over or entry into or exit from its territory. The Claimants put their submission as follows in their skeleton argument:

163.

Since … the majority number of UK departing flights are international and exit UK territory shortly after take off, APD operates as a levy on the right of exit from UK territory of the majority of passengers on board aircraft departing UK airports, i.e. a “gateway” charge. It matters not that the “trigger” for APD is the flight beginning from a UK airport. APD results in a charge “solely” on the right of exit of air passengers from UK territory.

164.

It would have been in the contemplation of the draftsmen and delegates that for aircraft and passengers on board to “exit” a contracting State’s territory, the flight would have to take off from an airport in that contracting State. It is not sensible to suggest that the signatories did not intend to prohibit all “fees, dues or charges” which would inevitably be triggered during the process of flights exiting (or entering or transiting) UK territory.

165.

A purposive construction would suggest that Article 15 CC was intended to prohibit any “gateway” charges of whatever nature and howsoever levied.

In his reply, Mr Haddon-Cave QC put the argument differently. He submitted that “solely” refers to aircraft, persons or property. Since APD is solely payable in respect of persons, its imposition contravenes Article 15.

The general principle applicable to the interpretation of treaties is prescribed by Article 31(1) of the Vienna Convention on the Law of Treaties, which, although it came into force well after the conclusion of the Chicago Convention, is generally accepted as declaratory of existing international law:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

State practice is relevant to the interpretation of a treaty. Article 31(3) of the Vienna Convention requires there to be taken into account, together with the context:

“(b)

any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; …”

Reference to the travaux préparatoires is only a supplementary means of interpretation. Article 32 of the Vienna Convention provides:

“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a)

leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.”

Article 33 of the Vienna Convention concerns treaties authenticated in two or more languages:

“1.

When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

2.

A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3.

The terms of the treaty are presumed to have the same meaning in each authentic text.

4.

Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”

Mr Haddon-Cave placed strong reliance on the French, Spanish and Russian texts of Article 15 as supporting the Claimants’ interpretation of “fees, dues or other charges”. The French is “droits, taxes ou autres redevances”; the Spanish is “derechos, impuestos u otros grávemenes”. (I have omitted the Russian text because of the difficulty of inserting the Cyrillic letters.) I said during Mr Haddon-Cave’s opening submissions that the French taxes seemed to me to point clearly to taxes being within the prohibition. This led to the evidence of Richard Littlewood, the Head of Translation and Interpreting at the Foreign and Commonwealth Office, being belatedly put in by the Treasury. His evidence is based on his professional knowledge of French and Spanish, and on the advice of colleagues in relation to Russian. His view is that taxe in the French text is used in the strict sense of “a compulsory levy of the same nature as a tax but intended to finance a particular public service and payable only by the users of the service” (see Cornu, Vocabulaire juridique); and that if it had been intended to denote a tax in the English sense, impôt would have been used. On this basis, the French text does not refer to taxes in the English sense. He accepted, however, that taxe often means “tax”, as in taxe à la valeur ajoutée. However, both the Spanish and the Russian texts use words that unequivocally translate as “taxes”.

Mr Anderson QC, predictably, placed more weight on the English text, a reliance I teasingly criticised as implying that, while all four texts are equally authentic, English is more authentic than the others. Mr Haddon-Cave placed considerable reliance on the Spanish and Russian texts, and on the wider meaning of taxe in French as meaning “a type of fiscal or parafiscal levy” (see, again, Cornu, Vocabulaire juridique).

Nonetheless, on the question whether Article 15 applies to a tax, as distinguished from a charge, there is, as will be seen, a difference between the authentic texts, and the question therefore arises whether the difference can be resolved by the application of Articles 31 and 32. I shall first, however, address the interpretation of the English text.

By itself, the word “dues” is apt to include taxes. However, it does not stand alone. It is in a provision headed “Airport and similar charges”, which indicates that it does not deal with taxes, and it is part of a composite phrase, “fees, dues or other charges”, which indicates that “dues” are charges; and if so, taxes are not “dues”. Furthermore, if it had been intended to include taxes in the prohibition, I think that that word would have been used, rather than the more ambiguous “dues”. Dues may be charges, and may be taxes; but “taxes” is clear and unambiguous.

More importantly, since it is not affected by possibly conflicting texts, I find the meaning of the words “in respect solely of the right of transit over or entry into or exit from its territory of any aircraft of a contracting State or persons or property thereon” to be clear. A due imposed for something other than transit or entry or exit of an aircraft (or persons or property on it) is not a due imposed solely in respect of the specified rights. This is consistent with the remainder of Article 15. It is essentially an anti-discrimination provision (or most favoured State provision), precluding a State from favouring its national airline or airlines when imposing charges. A fee, due or other charge imposed in relation to the right to enter the territory of a State, or the right to leave it, or to transit over it, would discriminate in favour of a local or national airline as against the airlines of foreign States. A fee, due or charge that is payable on take-off, irrespective of destination, and including destinations within the territorial State, does not discriminate against foreign airlines, and is therefore not objectionable. It is correct that a passenger on a flight going to a foreign destination may feel that he is paying a tax because his plane is exiting from the territory of the imposing State; but the tax is not in fact payable “solely” for the right to exit that territory, since it would be equally payable if his flight did not leave that territory.

On this basis, Article 15 does not prohibit APD, whether or not taxes are within the scope of the last sentence.

I turn to consider subsequent State practice, reference to which is enjoined by Article 32(b), to see whether “it establishes the agreement of the parties regarding its interpretation”.

Mr Anderson submitted that subsequent State practice should be taken into account in the interpretation of Article 15. Although in argument both counsel referred to the travaux before State practice, logically the Court should consider State practice first, since Article 31.3(b) of the Vienna Convention requires there to be taken into account:

“Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.”

The travaux, on the other hand, are, as I have stated above, a “supplementary means of interpretation”, under Article 32.

The subsequent practice relied upon by the Treasury is principally:

It is unnecessary to enlarge upon (a) and (b). So far as (c) is concerned, there is an issue as to the extent to which other States have imposed such taxes. I suspect that it was as a result of my mentioning that I had had to pay a departure tax in Peru that the Treasury belatedly placed before the Court an article published in volume 28 of Fiscal Studies(2007) Indirect Taxes on International Aviation, by Michael Keen and John Strand of the Fiscal Affairs Department of the International Monetary Fund. The article includes two tables giving details of airport and trip charges in 47 States. However, the listings in those tables must be treated with caution, because, as the authors comment:

“While the data used in them distinguish between airport charges (which usually accrue to the airport authority) and arrival/departure taxes (which usually accrue to the government), it is in many cases unclear to which of these two categories the charge should be allocated.”

The tables are best used in conjunction with the returns made by member States of the ICAO to the Council (of the ICAO) Resolution on Taxation of International Air Transport of 14 December 1993. From the Second Edition, 1994, of those returns, one sees that:

From the Third Edition (2000) of the State returns, one sees that:

On the other hand, a number of States imposed no taxes on international air transport. But what I find significant is not only the fact that a number of States imposed such taxes, but also the absence of any suggestion that their doing so constituted a breach of Article 15. Pakistan was not the only State to proclaim that it was free to levy taxation as it thought fit. In its 1994 return, Australia stated:

“General Comment – While we understand that ICAO has the right to make recommendations and resolutions regarding international aviation taxation issues, we strongly oppose the creation of separate taxation regimes for particular groups, including international airlines, and would oppose any moves by ICAO to makes its taxation policy binding on Contracting States.

Australia’s policy remains that questions relating to the taxation of international airlines should be dealt with in the context of Australia’s overall taxation policy. Australia will therefore continue to address these issues only in double taxation agreements and, less commonly, international airlines profits agreements.

Extension of ICAO taxation policies to taxes levied at sub-national levels – Australia cannot agree to the provisions extending ICAO taxation policies to local tax authorities. Australian States and Territories have their own taxing powers that they legitimately possess. This is reflected in the fact that Australia’s double taxation agreements and airline profit agreements do not cover State taxes.”

Furthermore, the resolution of the ICAO, which may be regarded as the guardian of the Chicago Convention, by which it was created, is inconsistent with the Claimants’ interpretation of Article 15. The ICAO’s Policies on Taxation in the Field of International Air Transport, third edition 2000 (Doc 8632) state, in the Introduction:

“The Chicago Convention on International Civil Aviation of 1944 did not attempt to deal comprehensively with tax matters. The Convention simply provides (cf. article 24 (a)) that fuel and lubricating oils on board an aircraft of a Contracting State on arrival in the territory of another Contracting State and retained on board on leaving the territory of that State shall be exempt from customs duty, inspection fees or similar national or local duties and charges. The same Article of the Chicago Convention also refers to the temporary admittance, free of duty, of aircraft on a flight to, from or across the territory of another Contracting State and the exemption from customs duty, etc., of spare parts, regular equipment and aircraft stores.”

Not only is Article 15 not referred to; I read the second sentence as identifying the sole provision of the Convention that dealt with taxation.

The Council of the ICAO is its governing body; it is elected by the Assembly, which consists of all its member States, for a three-year term, and is composed of 36 States. The Council Resolution on Taxation of International Air Transport is in my judgment inconsistent with the Claimants’ interpretation of Article 15. Its recitals do not refer to Article 15. The relevant recital on taxes on the use of international air transport is as follows:

“Whereas with respect to taxes on the sale and use of international air transport the imposition of taxes on the sale or use of international air transport tends to retard its further development by increasing its costs to the operator (as in the case of taxes on gross receipts or turnover), to the shipper (as in the case of taxes on cargo air waybills) and to the traveller (as in the case of taxes on tickets), and moreover, subjects the traveller to considerable inconvenience (as in the case of head taxes, and embarkation and disembarkation taxes).”

The relevant part of the Council Resolution is paragraphs 3, 4 and 5:

“3.

With respect to taxes on the sale and use of international air transport: each Contracting State shall reduce to the fullest practicable extent and make plans to eliminate as soon as its economic conditions permit all forms of taxation on the sale or use of international transport by air, including taxes on gross receipts of operators and taxes levied directly on passengers or shippers;

4.

Each Contracting State shall notify the Organization of the extent to which it currently levies taxes on international air transport and of the extent to which it is prepared to take action in accordance with the principles of this Resolution, and thereafter keep the Organization informed of any subsequent changes in its position vis-à-vis the resolution; and

5.

The information thus received shall be published and transmitted to all Contracting States.”

As can be seen, there is no hint here that any such taxes have been imposed in breach of Article 15, or that their abolition is required by it. The UK Government duly notified the ICAO of its imposition of APD; no complaint or challenge to its doing so has been forthcoming. The Commentary on the Resolution is no less inconsistent with the Claimants case. The Council’s objection to taxes such as APD is explained at paragraph 17:

“The same effect of an increase in the cost of air travel can be ascribed to other taxes, sometimes levied upon international air travellers at times of embarkation and disembarkation. In addition to raising the cost of travelling by air, these latter taxes, when collected at the last moment, have the added advantage of causing inconvenience to the traveller by requiring him or her, for example, to check in earlier for his or her embarkation, to obtain additional local currency, etc.”

In other words, the objection to such taxes is that they act as a deterrent to travel by air. Again, it is not suggested that they are unlawful under the Convention.

Lastly, the Treasury rely on the international response to the suggestion, originated by France, that a tax should be imposed on air travel in order to provide funds for the needs of developing countries: the so-called Chirac tax. The Declaration on Innovative Sources of Financing for Development signed in New York on 14 September 2005 by the Presidents of Chile, France and Brazil stated:

“In the near future, we will further work on and pursue the project of a solidarity contribution levied on air tickets for global sustainable development as supported by Brazil, Chile, France and Germany. The objective of this project is to combat hunger and poverty and finance global sustainable development, including the fight against HIV/AIDS and other pandemics.

The mechanism would be based on a small solidarity contribution levied on plane tickets issued to passengers departing from participating countries. In doing so, each participating country could determine, according to national priorities and taking into account economic, social and ecological criteria as appropriate, a differentiation between first/business and economy class tickets as well as domestic and international flights. The different capacities of developed and developing countries should be taken into account. The contribution should be set at levels that would minimize impacts on airlines, tourism industry and travellers.

From a legal point of view, the mechanism would work as a conjunction of nationally applied and internationally coordinated contributions. Participating countries would spell out the modalities of their cooperation, in accordance with domestic legislation.

It was agreed that the broadest possible participation by a critical mass of countries should be sought in order to minimize any possible remaining effect on competition and enhance the effectiveness of the proposed mechanism. For the same reasons, passengers in transit should be exempted from the solidarity contribution.

*

We commit ourselves to work further on and support pursuing the project of solidarity contributions, first of all a solidarity contribution levied on air tickets. We welcome the French proposal to host a high level meeting on this initiative by February 2006 and the commitment by some countries to pave the way by establishing such a contribution on air tickets as soon as possible in 2006.

*

We remain fully committed to the fight against hunger and poverty as a priority in the international agenda. We believe that innovative sources of financing will be an essential tool in this effort. We strongly hope that all countries and institutions, which share our ambition, will join us in this endeavour.”

The initiative appears to have received wide support. According to a document posted on the website of the French Ministry for Foreign Affairs:

“a)

The principle of innovative sources of financing is widely supported and a group of pioneering countries have undertaken to implement an air-ticket solidarity contribution.

The principle of innovative sources of financing is now receiving support from a large part of the international community, given that 79 countries … backed the declaration of 14 September 2005 which encourages further work on an international solidarity contribution. The signatories include several European countries (Germany, United Kingdom, Spain, Estonia, Austria, Sweden, Luxembourg) and major emerging countries (Brazil, India). Developing countries have high expectations of this initiative: 28 of the 47 African countries supported the declaration of 14 September 2005, and it was favourably received by five others.

At the European level, the European Commission highlighted all the advantages of this mechanism - including the ease with which it can be implemented - in its recent staff working paper of 1 September 2005. The new German government supports the principle of innovative sources of financing for development and, along with Spain, is part of the group of six working on this issue (Algeria, Brazil, Chile, France, Germany, Spain). The United Kingdom will allocate some of the revenue from its existing air passenger duty to health development projects, mainly programmes to buy HIV/AIDS, tuberculosis and malaria drugs. Other European countries have given encouraging signs. Norway in particular has announced that it is considering the introduction of an air-ticket solidarity contribution.

Lastly, President Lagos of Chile announced in September that his country plans to levy a solidarity contribution of $2 on all international flights from 2006.

b)

Progress report on the French initiative: details were given on revenues (contribution implementation conditions) and expenditure (allocation of revenues).

Revenues: France will start applying this air-ticket contribution on 1 July 2006. The law passed by Parliament on 22 December 2005 sets out the following rate caps for all flights departing from the French territory: €1 in economy class and € 10 in first and business class for domestic and intra-European flights (European Economic Area), €4 and €40 on other flights, depending upon the travel class. The actual tax rates will be laid down in early 2006 by government decree. These capped rates are expected to generate revenue of up to €200 million per year.”

The emphasis is in the original. It is evident that none of the States supporting this initiative consider the proposal to impose a tax on air tickets to be unlawful under public international law. It is not conceivable that they would have overlooked the Chicago Convention. Nor is it conceivable that no other State, or the ICAO, would have raised the question of the breach of Article 15 if it thought there had been one or that one was proposed.

There is thus substantial evidence of State practice inconsistent with the Claimants’ interpretation of Article 15 and an absence of any challenge or objection to that practice based on Article 15. In my judgment, this evidence does establish an agreement by the parties to the Chicago Convention that a tax on flight tickets, such as the APD (referred to in the above extract) is not prohibited by Article 15. It resolves the doubts resulting from the inconsistency between the different languages’ texts of the Convention.

Given that I have arrived at a clear interpretation of Article 15 without reference to the travaux, it is strictly unnecessary for me to do so. However, both parties referred to and relied upon the travaux préparatoires, and I shall shortly state my conclusions on them

I was referred to the judgments of the House of Lords in Fothergill v Monarch Airlines Ltd [1981] AC 251. Their Lordships confined the use of travaux as an aid to interpretation to cases where the text of the treaty is ambiguous or obscure (see e.g. Lord Diplock at 283; c.f. Article 32(a) of the Vienna Convention). However, Mr Haddon-Cave pointed out that the Vienna Convention permits reference to the travaux in any case “in order to confirm the meaning resulting from the application of Article 31”, as well as where the meaning is ambiguous or obscure. He did so, I assume, because his case is that Article 15 is unambiguous and clearly prohibits a tax such as APD.

Article 15 emerged as a result of consideration of the different negotiating positions of the US, UK and Canadian delegates. The USA originally proposed the following text, which was Article 9 in their draft:

“Aircraft in transit and persons and property thereon shall not be subject to any dues, fees or charges imposed on the right of transit (including entry and exit). In so far as any fees, dues or charges may be levied in connection with any landings made by aircraft in transit such dues, fees, or charges shall not be levied under any conditions other than those applicable to national aircraft or to aircraft of the most favoured nation, and shall not be greater than those imposed upon national aircraft or aircraft of the most-favoured nation.”

Leaving aside the controversy as to the meaning of “dues, fees and other charges”, it can be seen that it was in two parts: a prohibition of dues, fees and other charges payable for transit, and a prohibition of discrimination in the levying of landing “dues, fees and other charges”. Article 22 of the US draft was a prohibition on discrimination in the levying of charges for navigational facilities and landing. Article II Section 2 of the Canadian proposal permitted a member State to impose “just and reasonable charges for the use of the airports and other facilities on its territory, which shall not be higher than would be paid by a national aircraft engaged in comparable international services”: again, a non-discrimination provision. It did not extend to taxes.

The Second Interim Report of the relevant Drafting Committee contained the following text for what became Article 15:

“Airport and similar charges. Subject to the provisions of Article II section 5 (Document 402), and subject to such conditions as may be declared and published by the State in whose territory the airport is situated, every airport in a contracting State which is open to public use by its national aircraft shall likewise be open uniformly to the aircraft of all the other contracting States. The like uniform conditions shall apply to the use, by aircraft of every contracting State, of all air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation.

Each contracting State shall establish scales of charges for the use of such airports and air navigation facilities which shall be uniformly applicable to the aircraft of all other States, and which shall be published and communicated to the International Air Organization. No fees, dues or other charges shall be imposed by any contracting State in respect solely of the right of transit over or entry into or exit from its territory of any aircraft of a contracting State or persons or property thereon.”

The next draft included an Article 15 that closely resembled the final Article, and in addition an Article 68 that duplicated it in part. That duplication led to the revision of Article 15, and the transfer to it of part of Article 68. The final form of Article 15 is as above.

The Claimants rely on the change from the US draft, which used the words “transit (including entry and exit)” to “transit over or entry into or exit from” as indicating that a difference of meaning was intended. Entry and exit were no longer part of transit, but separate, so that a tax on exit is within the prohibition, whether or not the flight exiting the territory could be described as a transit.

In my judgment, there is nothing in the travaux to indicate that my conclusion as to the meaning of Article 15 is mistaken. None of the precursors to the final Article 15 went beyond prohibiting discrimination. It would be surprising if the final text did so, at least without some indication in the open proceedings of the Convention that an extension of the prohibition was intended. It would be similarly surprising if an absolute prohibition were included as the last sentence of what is otherwise a non-discrimination provision.

I add that, in my judgment, despite my comment during his argument referred to in paragraph 53 above, Mr Anderson was right to give some primacy to the English text, not because it is more authentic than the other texts, but because the travaux were in English, and reference to them necessarily involves reference to the English texts. Furthermore, the texts in the other languages are translations from the English, and could not have been intended to change the meaning of the English.

The Claimants’ case is supported by the decision of the Belgian Council of State in B.A.R. Belgium v the Belgian State,Decision 144.081 of 3 May 2005. The case concerned a yearly tax on the operation of aircraft imposed by the Belgian local council of Zavantem on persons having a civil aircraft “regularly participating in air traffic, from and/or to the territory of the district”, the amount of which depended on the number of passengers carried. The Council of State held that Article 15 was directly enforceable in Belgian law, and that the tax contravened the last paragraph. It is sufficient to cite paragraphs 3.10 and 3.12 of the decision:

“3.10

Considering that Article 15 includes the basic rules regarding costs in connection with public airports and air travel facilities; that the defence rightly observes that it prohibits foreign and national aircraft from being treated differently; that it however also does more; that in the last paragraph it not only orders a contracting State or of person or property in it, but prohibits altogether the establishment of tariffs, dues or other costs, which are just imposed for flying over, into or out and which have nothing to do with the use of the airport and airport facilities;

Considering that, therefore, this last paragraph is essentially to be read and understood, not in the first place as a measure to ensure that international air transport services can be established on the basis of equal opportunities, but as a measure to ensure that the air transport services – with the introduction of the Agreement on 7 December 1994- “can operate in a sound and economic way”.

…

3.12

Considering that, nevertheless, in order not to consider the contested tax as a tariff, due or other cost prohibited by Article 15, last paragraph, the defendant points out that the local tax is not based on each landing or each takeoff, or after each landing or takeoff; that these observations are of no importance; that they are only relevant if one were to adopt the view that Article 15, last paragraph, can affect only an indirect tax, because the disputed tax must be described as a direct tax; that this view also lacks grounds; that Article 15, last paragraph, prohibits taxes solely for the right to fly over, fly into or out of, irrespective of whether this flying over, into or out of must be regarded as merely coincidental or as a durable situation, and thus irrespective of whether the taxes are able to be regarded as an indirect or a direct tax respectively;

Considering also that the arguments that the taxable act of operating aircraft “is without any reference to ‘entry into’, ‘transit over’ or ‘exit from’”, and that the number of passengers departing “is used only as an index of the taxable operation” do not convince; that, as seen, the disputed tax on the operation of aircraft is essentially to be identified as a tax on flying out of and flying into the district; that the index used in this connection is in no way unimportant, but just as meaningful; since the basis for calculation must correspond to the reason why the tax becomes payable; that according to Article 4, the tax is calculated on the number of passengers who, during the year prior to the financial year, leave the airport in the territory of the district, at a rate of 12 Francs per departing passenger, that in this way the Article supports and confirms the conclusion that the tax is aimed specifically (among other things) at flying out of the district…”

I confess to not following all of this reasoning. For example, Article 15 refers to the territory of the State, not the territory of a district within the State. In the last cited paragraph of the judgment of the Council of State, the two seem to be confused. I do not know whether the Council of State considered the English text, or State practice. While according its decision all due respect, I regret that it does not lead me to alter my above conclusion.

I should also refer to the judgment given on 18 February 1999 of the Swiss Federal Tribunal in IATA v Zurich, of the relevant parts of which I was provided with a translation. The case concerned a challenge to an emissions charge levied by Zurich Airport. The charge was considered as a charge, rather than a tax: there is nothing in the judgment of the Tribunal to indicate that there was any argument as to whether a tax is within the scope of Article 15. The Tribunal held that the charge was non-discriminatory and that it satisfied the cost recovery principle: it seems that the revenue from the charge was used to cover measures for air monitoring connected with the emissions caused by air traffic. I do not derive any assistance from the judgment.

For the above reasons, in my judgment Article 15 did not prohibit the imposition of APD, or its increase.

Article 15 of the Chicago Convention is not enforceable in our Courts unless it has been incorporated into our municipal law by our domestic or by European legislation. It has not been incorporated by our domestic legislation. The Claimants contend that it has been incorporated in our law through European law, and specifically by Article 14 of Regulation (EC) No. 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky, known as the Service Provision Regulation. My conclusion as to the interpretation of Article 15 of the Chicago Convention strictly renders the issue as to the effect of Article 14 of the Service Provision Regulation academic, but again I shall shortly state my conclusions.

The recitals to the Framework Regulation (Regulation No 549/2004 of March 2004 laying down the framework for the creation of the single European sky) (“the Framework Regulation”) include the following:

“(1)

Implementation of the common transport policy requires an efficient air transport system allowing safe and regular operation of air transport services, thus facilitating the free movement of goods, persons and services.

(2)

At its Extraordinary Meeting in Lisbon on 23 and 24 March 2000, the European Council called on the Commission to put forward proposals on airspace management, air traffic control and air traffic flow management, …

(3)

Smooth operation of the air transport system requires a consistent, high level of safety in air navigation services allowing optimum use of Europe’s airspace and a consistent, high level of safety in air travel, in keeping with the duty of general interest of air navigation services, including public service obligations. It should therefore be carried out to the highest standards of responsibility and competence.

(4)

The single European sky initiative should be developed in line with the obligations stemming from the membership of the Community and its Member States of Eurocontrol, and in line with the principles laid down by the 1944 Chicago Convention on International Civil Aviation.”

These do not indicate that the Framework Regulation is to extend to the regulation of taxes on air travel: the regulation of such taxes is unconnected with the aims of safe airspace management, air traffic control and air traffic flow management. “The principles laid down by the Chicago Convention”, referred to in recital (4), seem to me to be primarily concerned with non-discrimination in the levying of charges; the formulation in that recital does not indicate that the proposals for a single European sky extend to taxes on air travel.

The substantive provisions of the Framework Regulation confirm this view. Article 1 sets out the objective and scope of the Regulation:

“1.

The objective of the single European sky initiative is to enhance current safety standards and overall efficiency for general air traffic in Europe, to optimise capacity meeting the requirements of all airspace users and to minimise delays. In pursuit of this objective, the aim of this Regulation is to establish a harmonised regulatory framework for the creation of the single European sky by 31 December 2004.

…

3.

The application of this Regulation and the measures referred to in Article 3 shall be without prejudice to the rights and duties of the Member States under the 1944 Chicago Convention on International Civil Aviation.”

It is not suggested that Article 1.3 of itself incorporated Article 15 of the Chicago Convention into EU law: clearly it did not. The objectives stated in Article 1 have nothing to do with the taxation of air travel. Article 1.3 takes the case no further.

Article 2 contains definitions of important services involved in air transport. Worth noting are the following:

“4.

“air navigation services” means air traffic services; communication, navigation and surveillance services; meteorological services for air navigation; and aeronautical information services;

…

11.

“air traffic services” means the various flight information services, alerting services, air traffic advisory services and ATC services (area, approach and aerodrome control services); ..”

The Service Provision Regulation is, as its name suggests, concerned with air navigation services and the charges for them. I refer in particular to recitals (4) and (5) and to (19), (20), (21) and (27):

“(4)

In order to create the single European sky, measures should be adopted to ensure the safe and efficient provision of air navigation services consistent with the organisation and use of airspace as provided for in Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation). The establishment of a harmonised organisation for the provision of such services is important in order to respond adequately to the demand of airspace users and to regulate air traffic safely and efficiently.

(5)

The provision of air traffic services, as envisaged by this Regulation, is connected with the exercise of the powers of a public authority, which are not of an economic nature justifying the application of the Treaty rules of competition.

…

(19)

Charging conditions applying to airspace users should be fair and transparent.

(20)

User charges should provide remuneration for the facilities and services provided by air navigation service providers and Member States. The level of user charges should be proportionate to the cost, taking into consideration the objectives of safety and economic efficiency.

(21)

There should be no discrimination between airspace users as to the provision of equivalent air navigation services.

(22)

Air navigation service providers offer certain facilities and services directly related to the operation of aircraft, the costs of which they should be able to recover according to the ‘user pays’ principle, which is to say that airspace users should pay for the costs they generate at, or as close as possible to, the point of use.

(23)

It is important to ensure the transparency of the costs to which such facilities or services give rise. Accordingly, any changes made to the system or level of charges should be explained to airspace users; such changes or investment proposed by air navigation service providers should be explained as part of an exchange of information between their management bodies and airspace users.

(24)

There should be scope for modulating charges that contribute to maximising system-wide capacity. Financial incentives may be a useful way of accelerating the introduction of ground-based or airborne equipment that increases capacity, of rewarding high performance or of offsetting the inconvenience of choosing less desirable routings.

…

(27)

The establishment and imposition of charges on airspace users should be reviewed by the Commission on a regular basis, in cooperation with Eurocontrol, and with national supervisory authorities and airspace users.”

Again, the limitation of this Regulation to charges for services is confirmed by its substantive provisions. Article 1 is as follows:

“Scope and objective

1.

Within the scope of the framework Regulation, this Regulation concerns the provision of air navigation services in the single European sky. The objective of this Regulation is to establish common requirements for the safe and efficient provision of air navigation services in the Community.

2.

This Regulation shall apply to the provision of air navigation services for general air traffic in accordance with and within the scope of the framework Regulation.”

Article 14 itself provides:

“In accordance with the requirements of Articles 15 and 16, a charging scheme for air navigation services shall be developed that contributes to the achievement of greater transparency with respect to the determination, imposition and enforcement of charges to airspace users. This scheme shall also be consistent with Article 15 of the 1944 Chicago Convention on International Civil Aviation and with Eurocontrol’s charging system for en route charges.”

APD is not a charge for air navigation services and is outwith the scope of Article 14. The scheme to be developed pursuant to Article 14 must be consistent with Article 15 of the Chicago Convention: essentially, it must not discriminatory and must not make a charge solely for transit, entry or exit.

The Claimants also rely on the provisions of Commission Regulation EC 1794/2006 (“the Common Charging Scheme Regulation”) and of the Commission’s “Mandate to Eurocontrol to assist the European Commission in the development of implementing rules on a common charging scheme for air navigation services” dated 9 February 2004 (SSC/1/3) (“the Mandate”). In my judgment, they take the Claimants’ case no further; to the contrary, they are inconsistent with it.

The Common Charging Scheme Regulation laid down detailed provisions for the common charging scheme which the Commission was required to establish. The recitals include:

“(1)

The Commission is required to establish a common charging scheme for air navigation services throughout the Community.

…

(3)

The development of a common charging scheme for air navigation services provided during all phases of flight is of the utmost importance for the implementation of the single European sky. The system should contribute to the achievement of greater transparency with respect to the determination, imposition and enforcement of charges to airspace users. The system should also encourage the safe, efficient and effective provision of air navigation services to the users of air navigation services that finance the system and stimulate integrated service provision.

…

…

(6)

The common charging scheme should be consistent with Article 15 of the 1944 ICAO Chicago Convention on International Civil Aviation.

…

(16)

Charges to be imposed on airspace users should be established and applied in a fair and transparent manner, after consultation of users. Such charges should be reviewed on a regular basis.”

Article 3 of the Common Charging Scheme Regulation lays down principles for the charging scheme:

“Principles of the charging scheme

1.

The charging scheme shall reflect the costs incurred either directly or indirectly in the provision of air navigation services.

…

5.

The charging scheme shall provide transparency and consultation on the cost bases and on the allocation of costs among different services.”

All of this confirms that, as its title suggests, the Common Charging Scheme Regulation is concerned with charges for air navigation services and not taxes.

The Claimants rely on section 3 of the Mandate:

“Justification

In accordance with articles 14, 15 and 16 of the Service Provision Regulation, Member States shall comply with common principles when setting air navigation charges to airspace users.

These principles must be consistent with Article 15 of the 1944 Chicago Convention on International Civil Aviation and with Eurocontrol’s charging system for route charges. They aim at contributing to the achievement of greater transparency with respect to the determination, imposition and enforcement of air navigation charges to airspace users.

…The European Commission considers the development of such common air navigation charges scheme to be of utmost importance for implementation of the Single European Sky. …”

Neither section 3 of the Mandate, nor its other provisions, suggests that the Service Provision Regulation extend to taxes, as distinguished from air navigation charges.

My conclusion as to the effect of the Service Provision Regulation makes it unnecessary for me to address the question whether the increase in APD would infringe it if that tax were within its scope.

It follows that the Claimants have not established their claim under the single European sky legislation, and in particular Article 14 of the Service Provision Regulation.

The issues in summary

A1P1 is as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Although a literal reading would suggest that legislative provisions for the payment of taxes are outside the ambit of A1P1, the jurisprudence of the European Court of Human Rights establishes that they are not: they are subject to the rights of natural and legal persons conferred by the first paragraph. It follows that such laws must also satisfy the requirement of proportionality between legitimate aim and means: see, e.g., James v United Kingdom (1986) 8 EHRR 123 at paragraph 37. It is for the Government to demonstrate that a measure that engages A1P1 satisfies the requirement of proportionality: c.f. R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 WLR 46, [2006] UKHL 55 at paragraphs 38 and 106.

Formally, APD is a tax imposed on aircraft operators. As has been seen, as a result of the contractual arrangements between those operators and passengers, or between the operators and tour operators, and between tour operators and their customers, the financial burden of the tax is normally passed on to passengers; but, by reason of the provisions of the Package Travel Regulations, the substantial effect of the increase announced in December 2006 was to impose the financial burden of that increase, in respect of passengers who had already made their bookings, on tour operators. The Treasury rightly does not dispute that this financial burden entitles the Claimants to invoke A1P1: i.e. that the Convention looks at the effective financial burden imposed by the tax rather than merely the legal burden: see, e.g.: Sporrong and Lönnroth v. Sweden (1983) 5 EHRR 35 at paragraph 63.

It is because the Claimants were compelled to bear only the December 2006 increase in APD that their challenge under this head is confined to its increase. Subject to their case on Article 15 of the Chicago Convention and Article 14 of the Service Provision Regulation, they do not dispute that the increase was imposed “in the public interest” and “subject to the conditions provided for by law”. Their contention is that the increase does not satisfy the requirement of proportionality, a requirement that is particularly stringent in the case of a measure having retrospective effect, as they say the increase had.

The Treasury contends that the requirement of proportionality is satisfied. It disputes that the increase had retrospective effect. It contends that the particularly wide latitude, or margin of appreciation, accorded to the executive and to the legislature in this context makes it impossible for the Court to find that the increase in APD infringed the Claimants’ rights under A1P1.

In support of their case on the lack of proportionality, the Claimants referred to evidence given by the then Chancellor of the Exchequer and the Treasury’s Managing Director, Budget, Tax and Welfare to the Treasury Select Committee of the House of Commons. The purpose of these references was to show that the Treasury was aware of the retrospective nature of the increase, and that the evidence gave an incomplete or inaccurate account of the effects of the increase.

The report of the Treasury Select Committee was also relied upon, in part for its comments on the retrospective effect of the increase, but also for its comments on matters of Parliamentary procedure arising from the timing of increase.

In addition, the Claimants seek to rely on evidence given by the Financial Secretary to the Treasury to the Select Committee on the Environment in support of their case on APD as an instrument of environmental policy.

The Speaker of the House of Commons, while of course not seeking to interfere with the Court’s determination of the substantive issues before it, objected to the Court receiving this evidence on the ground that to do so would constitute a breach of Article 9 of the Bill of Rights and an infringement of the wider principle of Parliamentary privilege.

As will be seen, I do not think it necessary to determine the issues he raised in order to decide the substantive issues before me, but in deference to the arguments put before me I shall briefly address the principal points.

Article 9 of the Bill of Rights is as follows:

“Freedom of speech – That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

The key words here are “impeached” and “questioned”. In addition, as Mr Lewis QC pointed out, the courts further recognise that:

“In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles.So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges.”

See Prebble v Television New Zealand Ltd [1995] 1 A.C. 321 at p. 332 per Lord Browne-Wilkinson, re-affirmed recently by the Judicial Committee of the Privy Council in Toussaint v. The Attorney General of Saint Vincent and the Grenadines [2007] UKPC 48, the judgment in which was delivered on 16 July 2007, the day before the hearing of the present proceedings began. In the above citation too, the key word is “challenge”. Lord Browne-Wilkinson added:

“Their Lordships wish to make it clear that if the defendant wishes at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to that course.”

Toussaint clarifies, and in my view limits, the exclusion resulting from an allegation of impropriety. It establishes that it is proper for a claimant to rely on evidence of what was said by a Minister in Parliament to show what was the motivation of the executive’s action outside Parliament, in that case the compulsory purchase of Mr Toussaint’s land. He alleged that the compulsory purchase was discriminatory or illegitimate expropriation: an allegation of impropriety. He was entitled to rely on the Minister’s statement to show what was the true motivation for the compulsory purchase. It is to be noted that Mr Toussaint did not allege that the Minister had misled Parliament; to the contrary, it was alleged that what he said to Parliament disclosed his true motivation. The allegedly wrongful act in that case was not the statement to Parliament, but the compulsory purchase to which it related: see paragraphs 19 and 20 of the judgment of the Judicial Committee. Mr Toussaint was similarly entitled to rely on what the Minister said to Parliament in support of his allegation that the purpose stated in the declaration for compulsory purchase was a sham: paragraph 23.

Mr Lewis sought to distinguish Toussaint, and the earlier decision of the House of Lords in R v. Secretary of State for the Home Department, ex p. Brind [1991] 1 AC 696, on the basis of three propositions, which I take from his supplementary skeleton argument:

In my judgment, the first two of these propositions are too widely stated. I see no basis for distinguishing between what a Minister says in the House of Commons (or the House of Lords), which may be considered by the Court in a case such as Toussaint,and what he or she says to a Select Committee. Whether what is said by an official should be received in evidence must depend on the circumstances: what he says, his authority, and the reason for which it is sought to rely on it. In general, the opinion of a Parliamentary Committee will be irrelevant to the issues before the Court (as in R (Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin) and, as will be seen, the present case), and accordingly I do not think it sensible to seek to consider the admissibility of such a report in a case in which its contents are relevant.

The difficulty with Mr Lewis’s second proposition is that the Treasury’s own evidence is of the Government’s reasons for increasing APD, and implicitly identifies the Government’s reasons (and its consideration of the impact of the increase on tour operators) with Parliament’s. The basis of the admissibility of Parliamentary proceedings under the rule in Pepper v Hart [1992] UKHL 3, [1993] AC 593 is that in defined circumstances the statements of Ministers can be taken to represent the intention of Parliament. As will be seen, it is unnecessary for me to form a view as to Mr Lewis’s third proposition.

The Claimants do not accept that the Speaker’s objections are well founded; but in fact most of the material the admissibility of which was disputed was not referred to during the course of the hearing. As Mr Haddon-Cave commented, the evidence in the case has moved on since the Claimants sought to rely on that challenged by the Speaker.

In my judgment, the Speaker’s submissions, and the authorities to which I have referred, demonstrate the importance of identifying the purpose for which evidence of proceedings in Parliament is relied upon. Like Bean J in Bradley, it is the relevance of that material as well as its origin that the Court must consider. It is necessary to consider whether this material would otherwise be admissible on or relevant to the determination of the Claimants’ substantive claims, before deciding whether its origin precludes their adducing it in evidence.

Whether the increase in APD was retrospective is to be determined objectively, by reference to the terms of the provision effecting the increase and its practical financial effects. Whether a Parliamentary Committee did or did not consider it to be retrospective is, in my judgment, irrelevant to the legality of the increase, and on that account its opinion is inadmissible.

Whether any witness gave a complete or an incomplete account of APD or its increase or the effects of the increase to a Parliamentary Committee is also irrelevant to the determination of the substantive issues before me. It is for Parliament, not the Courts, to assess the completeness and reliability of such evidence. This Court is not concerned with such matters, which do not affect or go to the lawfulness of the increase.

Similarly, whether the Parliamentary procedure by which the increase was introduced was appropriate has no bearing on its legality. That is most certainly not a matter for judicial investigation or comment.

The efficacy or otherwise of APD as an environmental measure is also, in my judgment, a question which, if relevant, is to be determined on the basis of evidence and argument before the Court, and not on the basis of the opinion of anyone whose evidence is not before the Court. There is, however, no reason why the Claimants cannot take from what has been said to or by a Select Committee points that can be put before the Court. For example, what was said by the Financial Secretary to the Treasury to the Select Committee on the Environment is not rocket science, but something that would be obvious to anyone who gave the matter some thought. The points he made can be made independently, without reference to his statement.

Thus, in the end, I do not think that the Parliamentary material referred to by the Claimants, which I have looked at de bene esse, as such advances their case.

In support of their case on proportionality, the Claimants asserted the following:

Accordingly, the Claimants contended that, in increasing APD as it had done, the State had failed to strike “a fair balance between the demands of the general interest of the community and the requirements of the protection of [their] fundamental rights”, and had imposed, albeit temporarily, an “individual and excessive burden” on the tour operators (see, e.g.: Sporrong and Lönnroth v. Sweden at paragraphs 69 and 73):

“The Government has put forward no sufficient reason for imposing the £50 million burden upon tour operators. Nor could it. The object of the increase was to increase a tax on airlines that would be passed on to and alter the behaviour of the passengers.

“… In truth, the Government had no intention of taxing tour operators at all.”

In response, the Treasury contended:

The relationship between the first and the second paragraphs of A1P1 has been explained by the European Court of Human Rights on numerous occasions: see, e.g., its judgment in Gasus Dosier- und Fördertechnik GmbH v. The Netherlands (Application no. 15375/89):

“55.

As the Court has often held, Article 1 (P1-1) guarantees in substance the right of property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

However, the three rules are not “distinct” in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, the AGOSI v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 17, para. 48).”

The Convention requires that a measure engaging the first paragraph of A1P1 should be proportionate to the object for which it is imposed. It is therefore necessary to identify that object or those objects. According to the Defendant’s letter in response to the Claimant’s solicitors’ letter before claim:

“In the present case the Government took the view in the Pre Budget Report that APD rates should be raised in recognition of the impact aviation has on the environment. The Government has for a long time endorsed the ‘polluter pays’ principle, and it has raised APD rates on this occasion with the objective of reducing the damage which aviation causes to the environment and at the same time providing resources for the Government’s spending priorities such as public transport and the environment. The Government’s econometric analysis suggests that, overall, the increased rates will lead to reductions in air travel and that this change will deliver considerable carbon savings year on year. For example by 2010/11 the change will have the effect of saving approximately 0.3 million tonnes of carbon emissions per annum.”

The classic statement of the requirement of proportionality is that of Lord Steyn in R v. Secretary of State for the Home Department ex p Daly [2001] 2 AC 532 at paragraph 27, namely:

“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

However, the application of this test requires modification, or at least caution, when it is sought to apply it to a tax measure such as the imposition of or increase in APD. Taxation is one of life’s certainties: it is essential in a modern society in order to fund its government and public services. As Benjamin Franklin famously remarked: “But in this world nothing can be said to be certain, except death and taxes.” Assuming that a tax measure is not disguised confiscation it necessarily involves taking property from the citizen, and therefore a limitation on his fundamental right under the first paragraph of A1P1. In relation to the requirement of a rational connection, if one, if not the only, legislative objective is to raise revenue, the rational connection is obvious. In the case of the increase in APD, there were two such objectives, the one to raise revenue and the other to reduce travel by air. It is not disputed that in relation to those whose flights had not yet been booked, the increase was generally rationally connected with both of these objectives. In relation to those passengers whose package holidays had already been booked when the increase was announced, the rational connection with the second objective was either lacking or speculative.

Where one of the objectives of a measure is to obtain revenue, it is difficult, if at all possible, to require that the means used “are no more than is necessary to accomplish the objective”. Any tax can, in theory, be replaced wholly or partly by a different tax; an increase in any tax can be replaced by an increase in a different tax or the creation of a new tax. It is for this reason that when the abolition of specific taxes (such as inheritance tax or stamp duty on property transactions) are discussed, figures are often given for the amount the standard rate of income tax would have to be increased in order to replace the lost revenue. Similarly, government borrowing is sometimes seen as an alternative to increases in tax revenues. Conversely, a reduction in government spending may be an alternative to an increase in a tax; but it may be, and, since tax revenues are not hypothecated, I would think normally would be, impossible to identify what specific expenditure would be at risk if a particular tax were not increased. For example, if the Government were planning to build a particular hospital at a cost of £50 million, it would not be sensible to balance the need for that hospital against the impact of an increase in APD in order to consider the lawfulness of the increase under the Convention.

The latitude to be accorded by the judicial branch of government to the executive and legislative branches varies with the context: see the speech of Lord Nicholls in A v Secretary of State [2004] UKHL 56, [2005] 2 AC 68 at paragraph 80:

“… the courts will accord to Parliament and ministers as the primary decision-makers, an appropriate degree of latitude. The latitude will vary according to the subject matter under consideration, the importance of the human right in question and the extent of the encroachment on that right.”

The right engaged in the present case is less important than Convention rights under, for example, Articles 2, 3 and 5. In this connection, it is pertinent to recall what the European Court of Human Rights said in James v UK (1986)8 EHRR 123 at paragraph 42:

“… the object and purpose of Article 1 (P1-1) … is primarily to guard against the arbitrary confiscation of property.”

The encroachment on the Claimants’ rights under A1P1 in this case does not approach confiscation, and does not demand anxious scrutiny by the Court. Far from it, in the present context:

“The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is “in the public interest” unless that judgment be manifestly without reasonable foundation.”

See paragraph 46 of the judgment in James.

Thus in the Gasus case, referred to above, the Court held that a measure entitling the Netherlands tax authorities to seize and to realise property in the possession of a defaulting tax payer that belonged to the applicant, who had sold that property subject to its retention of title, was not disproportionate. It expressed the approach of the Court in such a case as follows:

“60.

As follows from the previous paragraph, the present case concerns the right of States to enact such laws as they deem necessary for the purpose of “securing the payment of taxes”.

…

In passing such laws the legislature must be allowed a wide margin of appreciation, especially with regard to the question whether - and if so, to what extent - the tax authorities should be put in a better position to enforce tax debts than ordinary creditors are in to enforce commercial debts. The Court will respect the legislature’s assessment in such matters unless it is devoid of reasonable foundation.”

In my judgment, there is no difference between the approach of the Court to a measure to secure the payment of taxes in the sense of that considered in Gasus and the approach to a substantive tax measure, i.e. a decision to impose a particular tax or to increase it. In order to challenge successfully such a measure, it must be shown that the legislature’s assessment is “devoid of reasonable foundation”.

Furthermore, the jurisprudence of the European Court of Human Rights does not justify this Court in declaring a tax measure incompatible because its objects could have been secured more efficiently or effectively by a different measure. The cases of James and Gasus show that the fact that a particular class of persons is subject to a measure that engages A1P1 is a factor to be taken into account, but does not of itself lead to a conclusion of incompatibility.

Mr Anderson did not dispute that the increase in APD had been decided by the Government in ignorance of the Package Travel Regulations. Given that the Treasury had not produced any minute in which its impact had been addressed, and the careful drafting of the evidence on behalf of the Treasury, which omitted any clear statement that the effect of the Regulations had been considered before they were brought to its attention by the Claimants after the Pre-Budget Statement, it was in any event inevitable that I would find, and I do find, that they were ignored: that in effect the Government forgot about them. To be fair, the Defendant’s evidence was tantamount to an admission that the Regulations had originally been ignored: I refer to Mr Troup’s first witness statement:

“The points raised (by the Claimants) were carefully considered by Ministers and officials but it was not considered appropriate to change the decision to increase the rate of APD as regards all flights departing on or after 1 February 2007 ….”

In other words, the points raised had not been considered when the decision was first made.

That this should have occurred does not speak well of the process of decision-making by the Treasury. However, the Regulations and their effect on the announced increase had been emphatically brought to the attention of the Government by the Claimants and others, in correspondence and at the meetings of 11 and 12 December 2006. It is, I think, obvious from the account of the former meeting, as well as Mr Troup’s evidence, that Ministers had been consulted by Mr Troup and other officials as a result of the representations received from the Claimants and others, and had decided that the increase would be implemented as announced despite its effect on tour operators. Hence, as recounted above, Mr Troup was able to and did inform the industry representatives at the meeting of the 11 December that:

“The PBR policy decision was quite clear – Ministers had decided that the change would apply to flights on or after 1 February and this was fixed.”

The Claimants do not suggest that the environmental considerations that led to the increase in APD were not a legitimate governmental object (although they rightly point out that, given other government policies that aim to increase the capacity of UK airports, the increase will not bring about an absolute reduction in air travel, but no more than a reduction from what it would be without an increase). However, the increase could not have affected the decisions of tour operators’ customers whose holidays had already been booked, so that (subject to the matter referred to in paragraph 151 below) there could be no environmental justification for its burden being borne by the operators.

The difficulty with this part of the Claimants’ case, however, is that reasons and justification for the increase in the tax were, as has been seen, plural. In his witness statement of 4 May 2007, Edward Troup, the Director of Business and Indirect Taxes in H M Treasury, stated:

“The objectives of APD are to protect the environment, broaden the tax base and raise revenue.”

More specifically, in relation to the Treasury’s refusal to postpone the introduction of the increase, or to exempt existing bookings, in his second witness statement Mr Troup said:

“… the revenue impacts of making any exemption for flights booked before PBR (the Pre-Budget Report of 6 December 2006) were also taken into account as a factor in considering whether to create such an exemption.”

I have no doubt that the loss of revenue involved in exempting existing bookings or in postponing introduction of the increase was a, if not the, major consideration of Ministers in refusing any concession to the operators. A concession would, I assume, have involved either an increase in some other tax, or an increase in government borrowing, or a reduction in government spending. If the concession had involved postponing the introduction of the increase generally (i.e., for all passengers by air), the loss of revenue would have been in the order of £100 million rather than £50 million. An exemption limited to existing package holiday bookings would have been seen as unfair and discriminatory by airline operators, such as British Airways, who were represented at the meeting of 11 December 2006, and complained about the early date for the introduction of the increase; and in the event British Airways did not pass on the increase to passengers who had booked their flights before the announcement.

With regard to the precedents relied on by the Claimants, it is of course relevant that on previous occasions the Government of the day had accommodated the tour operators’ position. But not all the previous instances were materially identical. The postponement in 1994 was in the unforeseen (by the industry) introduction of a new tax, not an increase in an existing tax. Furthermore, the fact that it was politic and reasonable to postpone increases in the past does not make it unreasonable or unlawful to have refused to defer the introduction of the increase on this occasion.

However, I do not accept the Treasury’s submissions on the legal and administrative difficulties involved in an exemption for tour operators’ existing bookings. The contract between customers and tour operators is necessarily a written contract, as required by regulation 9 of the Package Travel Regulations. The Regulations already impose requirements by reference to the time of the conclusion of those contracts: see regulation 7. In practice, the customer has to sign an application form and to pay a deposit. It would not be difficult to draft a legislative exemption in relation to contracts concluded before 6 December 2006. Section 38 of the Finance Act 1994 requires aircraft operators to keep accounts and to make returns in respect of APD. I see no administrative or legal reason why a requirement could not have been imposed on tour operators to certify to aircraft operators those passengers whose contracts had been made before 6 December 2006 and to submit to an audit of such certificates by Her Majesty’s Revenue and Customs. The requirements of signed booking forms and payment of a deposit would have made the certificates easily auditable. There would have been an increase in the administrative burden on tour operators and flight operators, and on HMRC, but it would not have been considerable.

However, I am far from sure that exempting package holiday passengers, while retaining liability for other passengers, would have been seen as, or would have been, fair and non-discriminatory. While some airlines were protesting that in the time available they would not be able to collect the increase from their passengers, and British Airways decided not to do so (doubtless as much for the sake of its relations with its customers as for reasons of administrative difficulty), others (such as Ryanair) did collect the increase. It would have been more difficult to identify and to audit the dates of bookings of airline flight tickets by members of the public, who do not necessarily pay when booking, and whose bookings may be made on the telephone. Perhaps more significantly, the revenue loss would have been doubled if the exemption had applied to all passengers. And so I think that there were substantial reasons not to defer or to exempt existing package holiday bookings.

The Treasury’s submissions on retrospectivity were consistent with the footnote to the minute of the meeting of 11 December 2006 (as to which see paragraph 26 above) and suggested an all-or-nothing test. However, I do not consider that issues as to the retrospective nature of a government measure are necessarily all or nothing. A tax on flights taken before PBR day, or on contracts already entered into, would have been obviously and objectionably retrospective, legally and practically. But in my judgment, a measure is retrospective in its effect to the extent that it affects the fulfilment of transactions concluded before its announcement. Thus, in Chebaro v Chebaro [1987] Fam 127, the application of the Matrimonial and Family Proceedings Act 1984 to applications for financial relief made after the Act came into force in relation to marriages dissolved before it came into force was described as retrospective. The increase in APD was practically a retrospective measure, since it was payable on flights that had already been contracted when it was announced.

The extent to which a measure has retrospective effect is clearly an important consideration in assessing its lawfulness under A1P1, but it does not of itself render the measure incompatible: see A, B, C and D v UK (1981) 23 DR 203.

In my judgment, it is important, when assessing the question of proportionality, to consider the financial and business context. The impact of APD on tour operators derives not simply from the tax legislation itself, which imposes no tax burden on them, or on the Package Travel Regulations alone, but on the business and contractual arrangements of the tour operators. I take it that flight operators normally universally pass on the burden of APD to passengers who have bought a ticket or to tour operators in the case of package holidays. Increases in tax rates (and other costs) are a known business risk. In relation to APD, an increase had been expected by airlines, although not one as great as was made (see the statement of Danny Bernstein, the chairman of the British Air Transport Association, at the meeting of 11 December 2006), and Mr Cooper himself states that “the possibility of an increase in APD had been trailed in previous months”. Nonetheless, as mentioned above, some (but by no means all) tour operators have a “no surcharge guarantee”: i.e., they bear the risk of increases in a tax, or in, for example, fuel prices, or other circumstances increasing the cost of providing a package holiday after the date of a booking: see, e.g., the booking terms and conditions of Voyages Jules Verne and Kuoni. Such operators must make allowance for such risks in their prices. As is notorious, fuel surcharges imposed by airlines have been substantial, yet would be absorbed by such operators.

Furthermore, at least one substantial operator, Thomas Cook, explicitly and publicly increased its brochure prices by £5 to recoup the cost to it of the increase in APD: i.e., it charged customers who booked after the date of their announcement in February 2007 to recoup the costs they had incurred in respect of passengers who had booked their holidays with them before 6 December 2006 for departures after 1 February 2007. Thomsons was said to be “baffled” and “speechless” at this decision, and Mr Cooper had thought that the possibility of such recovery was “wholly unrealistic”, but Thomas Cook clearly thought it to be in its financial interests. Perhaps more importantly, there is nothing (other than competitive and market pressures) to prevent tour operators from seeking to increase their profit margins in the future in order to recover the costs of the increase in APD. That future price increases might deter future customers from taking package holidays involving air travel would actually fulfil one of the Government’s objectives.

It is also relevant that British Airways, although not subject to the Package Travel Regulations and apparently contractually entitled to pass on the cost of the APD increase to its passengers, took the commercial decision not to do so. It thus does not follow that if tour operators had not been constrained by the Regulations they would all necessarily have passed on the increase to their customers.

Finally on the facts, none of the 12 tour operators constituting the Claimants claim to have suffered specific hardship as a consequence of the increase in APD. First Choice and Kuoni are the only two companies to have volunteered the relevant figures. The cost of the increase in APD is said to be £4.5 million to First Choice Holidays and £1.4 million to Kuoni UK. For the financial year ending in December 2006 First Choice Holidays reported a turnover of £2.715 billion and a pre-tax profit of £97.5 million. For the financial year ending in December 2005 Kuoni Travel Limited (the UK arm of Kuoni) reported turnover of £322 million in the UK and UK pre-tax profits of £28 million.

The hurdle for the Claimants on A1P1 is very high. They must demonstrate that the decision to increase APD with effect from 1 February 2007 without any concession in relation to bookings made before the announcement of the increase “was devoid of reasonable foundation”. While that decision is open to criticism, having been made in the first place without consideration of the effect of the Package Tour Regulations, and with a retrospective effect, and it may have been adhered to under a mistaken view of the difficulties of exempting tour operators’ existing bookings, it is impossible to conclude that the measure was devoid of reasonable foundation. The revenue involved was considerable, and the burden on the Claimants was an incident of their business. In my judgment, the requirement of proportionality was satisfied.

Article 49 is so far as material as follows:

“Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.”

The first question to be addressed is: whose freedom to provide services is said to be restricted by the governmental measure in question? The Claimants contend that it is the freedom of service providers in other parts of the EU, such as hoteliers and restaurateurs, to provide services for tourists whose travel to the place where they provide services has been made more expensive by the increase in APD.

The Claimants’ case is summarised in their skeleton as follows:

“224.

The effect of the increase in APD is to ‘impede the activities’ of EU service providers by making it less attractive for UK tour operators to purchase their services for sale as part of a package holiday. A package holiday typically includes flights, accommodation, and local services such as sightseeing excursions, evening entertainment, and ski-passes for winter holidays … Even though it is not a tax on the purchase of hotel accommodation itself, it renders holidays in other Member States less attractive because it will ‘influence the price of’ the holiday; see Case C 92/01 Stylianakis [2003] ECR I-01291 paragraph 28. It accordingly impedes the activities of the tour operators in buying and reselling such services.”

The Treasury contends that Article 49 is not engaged:

“Article 49 EC is not engaged, for the following reasons: -

a.

The increase in APD applies without distinction to all aircraft, whether operated by national or non-national airlines, and is levied at exactly the same rate on flights to EEA destinations as it is on flights to UK destinations.

b.

It is a tax measure, not directed at regulating trade in other Member States, and it falls within Member States’ discretionary area of freedom to set its own taxes.

c.

The measure affects in the same way the provision of services between Member States (cross-border provision) and within one Member State (national provision).

d.

Any effect on the provision of EU services is likely to be minor, unpredictable and indirect.”

In addition, it is contended that even if Article 49 is engaged, the increase in APD was justified.

It is to be noted that under this ground of challenge the fact that by reason of the Package Holiday Regulations the increase was, for a period, borne by the Claimants, does not form part of their case.

I have to confess to viewing this part of the Claimants’ case with caution. They originally limited their case under Article 49 to the increase in APD announced in December 2006. However, if the increased APD is indeed a restriction on freedom to provide services, it is difficult to see why Article 49 was not infringed when APD was first imposed: the real value of APD is now approximately what it was when it was introduced in 1994. It seems to me that logically this ground of challenge goes to the tax itself, and not merely its recent increase. This, it seemed to me, is confirmed by the Claimants’ skeleton argument, which, while asserting in paragraph 212:

“The increase in APD is contrary to the freedom to provide services protected by Article 49 EC.”

(the italics are mine) set out reasons why the tax itself constituted a breach. The explanation in paragraph 219 of their skeleton argument for so limiting their case was that “the proportionality challenge in these proceedings relates solely to the reasons for the increase in APD”. I did not find this enlightening in the context of the Article 49 claim. During the hearing, I put to Mr Haddon-Cave that I could not see a principled basis for confining this ground of challenge to the increase. His initial response was that it was only in relation to the increase that the Claimants could show that the Government intended to discourage travel by air. However, whether a measure is a “restriction on freedom to provide services within the Community” must, it seemed to me, be judged objectively on the basis of the effects of the measure in question, rather than by reference to the intentions of the Government. When I raised this, it led to a wavering by the Claimants of their position, and ultimately to their contending that their challenge under this head went to the entirety of the tax.

The Claimants’ uncertainty as to whether their challenge goes to the tax as such or only as to the increase in its amount does not give confidence in their analysis of their case. I also point out that the Claimants could not rely on Article 49 in relation to the burden of APD borne by them as a result of the Package Holiday Regulations. Since none (or very few) of their customers who had booked their holidays before 6 December 2006 bore the increase in the tax, none (or very few) of those customers would have been deterred by it from taking their holiday and receiving services from EU service providers.

Furthermore, if APD is a restriction on freedom to provide services within the Community, it is curious that no one, including the Commission, had ever previously complained about it during the 13 years of its existence.

The Claimants’ case under this head was criticised as inconsistent in another respect. In their solicitors’ letter of 31 January 2007, they alleged that it was their own freedom to provide services that had been restricted:

“The modalities of the introduction of the increased APD are not proportionate to (or even justifiable by) the objective of the increased APD (since the increase in APD will have no impact on package holidays already sold). By consequence, these modalities violate the tour operators’ right to provide services in combination with general principles of EC law, such as legal certainty and protection of legitimate expectations.”

The italics are mine. However, as has been seen, in their skeleton argument (and equally in their Re-Amended Grounds of Challenge) the Claimants rely on an alleged impediment to the activities of EU service providers. Mr Anderson commented that the Claimants rely on an alleged wrongful restriction on the freedom of service providers who are not before the Court, and have not put any evidence before the Court. In this respect, he suggested that the present claim is unique. The point was put thus in the Treasury’s Detailed Grounds for contesting the claim:

“The Claimants have not indicated how providers of package holidays are entitled to rely parasitically upon the alleged rights of others who are not parties to the action and appear to have made no attempt to assert those alleged rights.”

This criticism is not entirely fair. The Claimants do allege that their right to buy and to sell services is impeded by APD. But this is consequential on the allegation that the service providers in the EU have their right to provide services to the Claimants or their customers restricted by the tax, because it results in fewer package holidaymakers accessing their services. The dependence of the claim under this head on the alleged restriction on the rights of service providers in the EU was implicitly admitted in paragraphs 217 and 218 of the Claimants’ skeleton argument. Referring to the above-cited extract from the Treasury’s Detailed Grounds, they stated:

“217.

But the core business of tour operators involves buying services from other Member States and reselling those services as part of holidays sold to customers in the UK. Around 65% of package holidays sold by UK tour operators are to EU destinations (the figure is higher in the Summer season when around 70% of all reported sales are to EU destinations, compared with 55% in the Winter season)…. TUI estimates that 80% of its packages are to destinations within the EU: … As part of those holidays, tour operators provide accommodation and other tourist services which they purchase in the destination country such as sight-seeing excursions, evening entertainment, ski passes for winter holidays etc... Those services are sourced by the tour operators from service providers which reside in those other Member States of the EU (‘the EU service providers’).

218.

Accordingly, the Claimants have a sufficient interest in the matter to bring a challenge on this ground by way of judicial review proceedings.”

In these paragraphs, the Claimants allege not a restriction on their right to provide services, but a sufficient interest in the alleged wrongful restriction on the rights of the EU service providers to provide services. As Mr Anderson pointed out, it is not suggested that APD affects the prices which EU service providers charge tour operators.

Article 49 protects not only the right to provide services but also the right to receive services. In Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro [1984] ECR 377 the European Court of Justice held, at paragraph 16:

“It follows that the freedom to provide services includes the freedom, for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions, even in relation to payments and that tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of services.”

See also the judgment of the Grand Chamber in Watts v Bedford Primary Care Trust, Secretary of State for Health (2006) (case C-372/04). It is on this basis that the Claimants assert a restriction on their rights: i.e., their rights to contract for the services of EU service providers. (This assumes that the tour operators are the recipients of those services, although it is arguable that it is not they but their customers who are the recipients.)

Article 49 is on the face of it of wide import. Its application to tax measures requires particular caution. That every member of the EU must impose taxes goes without saying: it is itself financed from the proceeds of a tax (VAT), and there are provisions of the EC treaty that presuppose that Member States levy indirect taxes (see paragraph 65 of the Advocate General’s opinion in Viacom, cited below). Any indirect tax on goods is liable to inhibit the demand for those goods, and therefore to inhibit their importation from other EU states. Even a direct tax inhibits consumption of goods and services, and therefore may affect freedom of movement of goods and services. Thus too general an application of Article 49 would have unintended and unacceptable consequences.

Mr Anderson submitted that for this reason the Court of Justice has subjected the application of Article 49 to a number of what he termed filters, which I understand to be factors which, if applicable, exclude a finding of breach. However, the first of these, discrimination, is not a filter, but a factor leading to a finding of breach. Nonetheless, if it is a necessary factor, its absence would mean that the measure in question does not infringe Article 49.

Taxes that discriminate between national and inter-EU services and service providers will be held to infringe Article 49. Thus, in Stylianakis v Dimosio (Case C-92/01) the Court of Justice considered an airport tax imposed by the Greek Government the amount of which varied with distance travelled: passengers on flights between 100 km and 750 km paid an amount equal to ECU 10, while those travelling more than 750 km paid twice that sum. The doubled tax covered all international flights, including all flights between Greece and other EU states, other than only one, that between Corfu and Rome; no domestic flight covered more than 750 km, and therefore no domestic flight was subject to the higher tax rate. The Court held that the tax infringed Article 49, because it discriminated without justification between domestic flights and flights to other EU states. There is nothing in the judgment of the Court or in the opinion of Advocate General Alber to suggest that the tax infringed Article 49 simply because it made travel to other EU countries more expensive: i.e. that the tax would have been held to have infringed even if the same amount had been payable for travel to other EU countries as was payable for domestic flights. The Court’s answer to the question referred to it related to Article 3(1) of Council Regulation (EEC) No 2408/92, but its judgment discussed Article 49. The answer was as follows:

“Article 3(1) of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes precludes a measure adopted by a Member State, such as that at issue in the main proceedings, which imposes on, for the most part, flights to other Member States higher airport tax than that applicable to domestic flights within that Member State unless it is shown that those taxes compensate airport services necessary for the processing of passengers and that the cost of those services provided to passengers flying to other Member States is proportionately higher than the cost of those services necessary for the processing of passengers on domestic flights.”

It is also relevant to consider the formulation of the Advocate General, whose conclusion was in essence accepted by the Court:

“… it is proposed that the Court reply to the question referred to it as follows:

Article 59 of the EC Treaty (now, after amendment, Article 49 EC) and Article 3(1) of Council Regulation No 2408/92 are to be interpreted as precluding the application of a national provision which imposes a differentiated fiscal charge on domestic and intra-Community flights, with the direct result that an amount of tax is charged on intra-Community flights which is double that charged on flights within the Member State.”

In my judgment, the judgment and answer of the Court and the opinion of the Advocate General are inconsistent with the proposition that a non-discriminatory tax on air travel infringes Article 49. So too is the formulation of the general rule in Watts at paragraph 94:

“It should be noted in this connection that according to well-established case-law, Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State (Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 17; Kohll, paragraph 33; and Smits and Peerbooms, paragraph 61).”

Mr Anderson’s second filter is that measures the effect of which is uncertain or indirect will not be held to breach Article 49. For this proposition he relied on the judgment of the Court of Justice in Peralta (Case C-379/92) [1994] ECR I-3453. That case concerned an Italian law imposing restrictions on Italian vessels in relation to the cleaning and discharge of their tanks outside Italian territorial waters. The defendant contended that this restriction made it more expensive to transport goods between other EU states and Italy. Thus the case concerns free movement of goods rather than freedom to provide services. Article 30 of the EC Treaty provides:

“Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.”

The Court said, at paragraphs 23 to 25:

“Article 30 of the Treaty

23.

The national court enquires about the compatibility of the Italian legislation with Article 30 in so far as it requires Italian vessels to carry costly equipment. It asks itself whether this makes imports of chemical products into Italy more expensive and therefore creates an obstacle prohibited by that article.

24.

On this point, it is sufficient to observe that legislation like the legislation in question makes no distinction according to the origin of the substances transported, its purpose is not to regulate trade in goods with other Member States and the restrictive effects which it might have on the free movement of goods are too uncertain and indirect for the obligation which it lays down to be regarded as being of a nature to hinder trade between Member States (see the judgment in Case C-69/88 Krantz v Ontranger der Directe Belastingen [1990] ECR I-583, paragraph 11, and the judgment in Case C-93/92 CMC Motorradcenter v Pelin Baskiciogullari [1993] ECR I-5009, paragraph 12).

25.

Article 30 does not therefore preclude legislation like the national legislation in question.”

I accept that the same principle must apply to Article 49. Mr Anderson submitted that the effect of APD on the provision of services by EU service providers is too uncertain and indirect to involve a breach of Article 49. The claim assumes that tour operators will pass on the tax to their customers (see paragraph 224 of the Claimants’ skeleton set out above at paragraph 157). The effect is indirect since the tax is not imposed on the EU service providers.

While I accept that the consequences of the tax are uncertain, I am not entirely sympathetic to this part of Mr Anderson’s submission. The Government seeks to justify APD politically, factually and legally on the basis that it has the effect of reducing air travel. It scarcely lies in its mouth to justify the tax in terms of Article 49 on the basis that this effect is too uncertain. However, so far as the EU is concerned, air travel cannot be looked at in isolation. We now have a speedy rail link to the Continent. Much of the EU can be reached by trains travelling much faster than those in the UK. Ferry crossings are now faster than once they were. It seems to me to be uncertain whether the effect of APD will be to diminish travel to EU countries, or to lead to some holiday makers travelling otherwise than by air. In addition, the comparative cost of UK holidays is presumably relevant to holiday makers’ decisions as to whether to take their holiday abroad. However, travel and accommodation and catering are notoriously expensive in the UK. There is no expert or market evidence before me on these comparisons. What is I think clear is that the effect of APD and its increase on services provided in the EU is uncertain.

But that is not the end of this point. In R (Countryside Alliance) v Attorney General [2006] EWCA Civ 817, [2007] QB 305 the Court of Appeal considered the contention that the ban on the hunting of wild animals with dogs contravened Article 49, in that it restricted the freedom of providers of livery and other services to provide those services to UK hunts. The Court adopted Robert Walker LJ’s summary in R (Professional Contractors Group) v IRC [2001] EWCA Civ 1945; [2002] STC 165 at paragraph 74:

“What I derive from these authorities (and especially from Graf Case C-190/98[2000] ECR I-493, which is particularly instructive) is that a neutral, non-discriminatory national measure will not contravene the articles relating to freedom of movement unless it has a direct and demonstrable inhibiting effect on the particular right which is asserted.”

The Court of Appeal said, at paragraph 155:

“If the analysis of Robert Walker LJ is applied to the present case, two conclusions emerge. First, the hunting ban does not have a direct inhibiting effect on the rights asserted, of the English providers such as Mrs Johnson to supply services, and of persons in other member states to receive such services. What it does is to render the market for such services within a particular member state less attractive, both to English and foreign providers and receivers. …”

This formulation could be applied to APD. I accept that it does not have a direct and demonstrable inhibiting effect on the supply of services by EU service providers. What it may do is render the market for EU services less attractive to UK tourists. Its effect is not direct and it is not demonstrably inhibiting.

Mr Anderson’s third filter is the modesty of the tax charge. For this he cited the judgment of the Court of Justice in Viacom Outdoor SrL v Giotto Immobilier SARL [2006] 1 CMLR 47. This case concerned an advertising tax imposed by the municipality of Genoa on bill posters. The tax, it was argued, restricted cross-border advertising. The Court concluded that it did not:

“34.

By his question the Giudice di pace in essence asks the Court whether Article 49 EC precludes the levying of a tax such as the municipal tax on advertising introduced by Legislative Decree No 507/93, which is imposed on inter alia bill-posting services of a cross-border nature on the basis of the place of establishment of either the provider or the recipient of the services.

35.

According to the Court’s case-law, Article 49 EC requires the elimination of any restriction of the freedom to provide services, even if it applies to national providers of services and to those of other Member States alike, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services. (see to that effect Case C-262/02 Commission v France [2004] ECR I-0000, paragraph 22, and Case C-429/02 Bacardi [2004] ECR I-0000, paragraph 31, and the decisions cited there).

36.

Furthermore, it is to be borne in mind that the Court has recognised that a national tax measure restrictive of the freedom to provide services could constitute a prohibited measure, whether it is applied by the State itself or by a local authority (see, to that effect, Case C-17/00 De Coster [2001] ECR I-9445, paragraphs 26 et 27).

37.

With regard to the question of whether the levying by municipal authorities of a tax such as the advertising tax constitutes an impediment incompatible with Article 49 EC, it must first of all be noted that such a tax is applicable without distinction to any provision of services entailing outdoor advertising and public bill-posting in the territory of the municipality concerned. The rules on the levying of this tax do not, therefore, draw any distinction based on the place of establishment of the provider or recipient of the bill-posting services or on the place of origin of the goods or services that form the subject-matter of the advertising messages disseminated.

38.

Next, such a tax is applied only to outdoor advertising activities involving the use of public space administered by the municipal authorities and its amount is fixed at a level which may be considered modest in relation to the value of the services provided which are subject to it. In those circumstances, the levying of such a tax is not on any view liable to prohibit, impede or otherwise make less attractive the provision of advertising services to be carried out in the territory of the municipalities concerned, including the case in which the provision of services is of a cross-border nature on account of the place of establishment of either the provider or the recipient of the services.

39.

It follows from the foregoing considerations that Article 49 EC must be interpreted as not precluding the levying of a tax such as the municipal tax on advertising imposed by Legislative Decree No 507/93.”

The italics are mine. Quite how small a charge must be to qualify as “modest” is not clear. I can see that £10 may be a modest charge when imposed on a full price air ticket. It is less obviously modest in relation to a low-cost airline ticket. I do not have the information before me to enable me to judge whether it is modest in relation to the cost of charter flights to the EU. But the appropriate comparator is presumably the cost of a package holiday, including accommodation. APD is, I would have thought, a modest charge in this context.

In the end, all these points have to be assessed. In my judgment, the principal point is that APD is not discriminatory: it applies (with a minor exception) to both EU and domestic flights at the same rate. Its effect is not direct or demonstrably inhibiting. In the joined cases Mobistar SA v Commune de Fléron and Belgacom Mobile SA v Commune de Schaerbeek [2005] 3 CMLR 46, the Court of Justice considered the contention that a tax on mobile telephone operators’ transmission pylons, masts and antennae, which it was said affected the cost of telephone calls from Belgium to other EU states, infringed Article 49 (then numbered 59). The Court said:

“26.

By its first question the referring court is seeking to ascertain whether Article 59 of the Treaty must be interpreted as precluding the introduction, by legislation of a national or local authority, of a tax on mobile and personal communications infrastructures used to carry on activities provided for in licences and authorisations.

27.

Although, as Community law stands at present, direct taxation does not as such fall within the scope of the Community’s competence, Member States must nevertheless exercise their retained powers consistently with Community law (see Case C-279/93 Schumacker [1995] ECR I-225, paragraph 21; Case C-436/00 X and Y [2002] ECR I-10829, paragraph 32, and Case C-9/02 De Lasteyrie du Saillant [2004] ECR I-2409, paragraph 44).

28.

In the field of freedom to provide services the Court has already recognised that a national tax measure restricting that freedom may constitute a prohibited measure, whether it was adopted by the State itself or by a local authority (see, to that effect, Case C-17/00 De Coster [2001] ECR I-9445, paragraphs 26 and 27).

29.

According to the Court’s case-law, Article 59 of the Treaty requires not only the elimination of all discrimination on grounds of nationality, against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit or further impede the activities of a provider of services established in another Member State where he lawfully provides similar services (Case C-43/93 Vander Elst [1994] ECR I-3803, paragraph 14, and De Coster, cited above, paragraph 29).

30.

Furthermore, the Court has already held that Article 59 precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (De Coster, cited above, paragraph 30 and the case-law cited, and paragraph 39).

31.

By contrast, measures, the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State, do not fall within the scope of Article 59 of the Treaty.

32.

As regards the question whether the levy by municipal authorities of taxes such as those in question in the main proceedings amounts to a restriction incompatible with Article 59, it is necessary to point out that such taxes apply without distinction to all owners of mobile telephone installations within the commune in question, and that foreign operators are not, either in fact or in law, more adversely affected by those measures than national operators.

33.

Nor do the tax measures in question make cross-border service provision more difficult than national service provision. Admittedly, introducing a tax on pylons, masts and antennae can make tariffs for mobile telephone communications to Belgium from abroad and vice versa more expensive. However, national telephone service provision is, to the same extent, subject to the risk that the tax will have an impact on tariffs.

34.

It is appropriate to add that there is nothing in the file to suggest that the cumulative effect of the local taxes compromises freedom to provide mobile telephony services between other Member States and the Kingdom of Belgium.

35.

The answer to the first question must therefore be that Article 59 of the Treaty must be interpreted as not precluding the introduction, by legislation of a national or local authority, of a tax on mobile and personal communications infrastructures used to carry on activities provided for in licences and authorisations, which applies without distinction to national providers of services and to those of other Member States and affects in the same way the provision of services within one Member State and the provision of services between Member States.”

In my judgment, this reasoning applies equally to APD. It does not infringe Article 49.

If I am wrong on the application of Article 49 to APD, the question is whether it can be justified and satisfies the test of proportionality.

It is clear that the requirement of proportionality is applied more strictly in EU law than under the Convention: see the discussion of the Court of Appeal in the Countryside Alliance case at paragraphs 158 and 159. It is also clear that the protection of the environment is an objective that may justify a measure that would otherwise infringe Article 49: c.f. Commission of the European Communities v Kingdom of Denmark, case C-302/86[1988] ECR 4607.

The Claimants’ case on proportionality is summarised in paragraphs 249 to 251 of their skeleton argument:

“249.

First, there are plenty of methods open to the Government of raising revenue which do not require any restriction on the freedom to provide services, whether or not that revenue is ultimately spent on protecting the environment.

250.

Secondly, the income generated by APD is not "allocated to initiatives or compensatory devices to protect the environment". … The tax is not in any real sense linked to environmental objectives, any more than income tax is.

251.

Thirdly, the tax cannot be said to be the least restrictive way of achieving the result of reducing CO2 emissions because the tax lacks a coherent connection to the level of those emissions.”

These paragraphs are, in my view, justified factually. But, in my judgment, these facts do not justify a finding that a tax measure is unjustified and is disproportionate. Although the test is more stringent, much of what I have said about the difficulty involved in assessing proportionality under the Convention applies equally in this context. Given the modest amount of the tax, the fact that aviation is otherwise very lightly taxed, the fact in particular that APD is non-discriminatory, the uncertainty as to its effect on EU service providers, and the scope for it to be wholly or partly absorbed by tour operators or its effects mitigated by adjustment to their prices, I would hold that APD is justified as a proportional measure aimed at reducing air travel below the level at which it would otherwise be, and thereby reducing the damage caused to the environment by such travel, and as a revenue-raising measure.

Accordingly, the Claimants have failed to establish a breach of Article 49.

The Claimants have not established any of their grounds for challenging APD or its increase. The claim for judicial review will be dismissed.