Two inconsistent sets of rules apply to aircraft noise at Brussels Airport.

The federal government enacted the Royal Decree of September 25 2003 to implement EU Directive 2002/30/EC, which deals with noise pollution management at EU airports. Although this regime represents a compromise between the Annex 16 noise measures of the International Civil Aviation Organisation (ICAO) and other restrictions that are unrelated to aircraft certification, it is largely based on the ICAO approach to aircraft noise.

The Brussels region has enacted its own radical rules, which are based solely on noise perceived by residents at ground level and take no account of certification concerns. The rules are set out in the Decree of May 27 1999, which determines the aircraft noise limits for the region. The decree was adopted as part of the region's general environmental regulations. The Decree of July 17 1997 relates to noise abatement in the urban environment and the Decree of March 25 1999 sets out rules for the investigation, detection, prosecution and punishment of offences relating to the environment. Both decrees are amended periodically.

Enforcement in respect of environmental offences in the Brussels region is usually carried out by the regional environmental administration, once the public prosecutor has confirmed that the infringements will not be prosecuted before the criminal courts. Investigations in the Brussels region usually result in administrative fines, which are confirmed by a superior administrative body and may be appealed before the competent administrative court (ie, the Council of State).

A number of airlines have been fined in the past 10 years. These fines have resulted in several legal proceedings, although no final rulings have been reached. Two recent high-level preliminary rulings, one by the Constitutional Court and one by the Court of Justice of the European Union (ECJ), have attracted interest in Belgium and abroad.


Council of State
On March 20 2008 European Air Transport appealed to the Council of State against the Brussels regional authorities' decision to fine it up to €56,113 for infringement of noise limits.

A number of arguments were presented to the council, including a challenge to the legality of the Decree of March 25 1999 on the basis of the directive and the Belgian Constitution. The council referred preliminary questions to both the Constitutional Court and the ECJ, which issued decisions on March 30 2011 and September 8 2011, respectively.

Constitutional Court
A key preliminary question was whether infringements under the Brussels region's regime, which had resulted in administrative fines, were subject to the guarantees in Article 6 of the European Convention on Human Rights, which apply to criminal procedures. It was found that the regional environmental administration's fines, although described as administrative fines, were so big that they should be classified as criminal fines; therefore, the guarantees for criminal procedures should apply.

The court had to determine whether airlines were subject to discriminatory treatment under the region's administrative procedure by being denied the opportunity to rely on extenuating circumstances, as such opportunity is granted in the context of standard criminal procedures.

The court held that the Decree of March 25 1999 is unconstitutional in denying airlines the right to present extenuating circumstances in administrative procedures relating to noise pollution infringements. The court did not explain the consequences of the finding - these will be clarified by the Council of State. However, this should undermine the fines to some extent.

Another preliminary question was submitted to the ECJ in respect of the compatibility of the directive and the Decree of May 27 1999, which sets maximum values for noise levels.

For the purpose of the directive, the term 'operating restrictions' means:

"noise-related action that limits or reduces access of civil subsonic jet aeroplanes to an airport. It includes operating restrictions aimed at the withdrawal from operations of marginally compliant aircraft at specific airports, as well as operating restrictions of a partial nature, affecting the operation of civil subsonic aeroplanes according to time period."

Thus, operating restrictions within the framework of the directive may be based only on the noise generated by the aircraft - a function of the aircraft's performance. In contrast, the decree establishes maximum noise levels as perceived and measured at ground level.

The ECJ ruled that the decree does not constitute a prohibition on access to the airport and consequently does not automatically constitute an operating restriction. However, the ECJ found it possible that a detailed assessment of the relevant economic, technical and legal factors surrounding the decree might lead to the conclusion that it has the effect of a prohibition on access. Therefore, it is for the referring court to determine, on the basis of a fact-specific assessment, whether the measures provided by the decree are, in effect, an operating restriction.

The ECJ's ruling does not expressly validate the regime of noise limitation and infringements in the decree; rather, it states that the relevant national court must determine whether, in practice, the decree establishes an 'operating restriction' within the meaning of the directive. Unfortunately, the ECJ has not definitively addressed and answered the question of the inconsistency between the EU and Belgian federal systems and the Brussels region's system.


The Council of State must now give a final ruling, taking into account the preliminary rulings of both the Constitutional Court and the ECJ. In the meantime, the Brussels region is likely to continue prosecuting aircraft noise infringements.

For further information on this topic please contact Pierre Frühling at Field Fisher Waterhouse LLP by telephone (+32 2 732 14 05), fax (+32 2 732 14 15) or email ([email protected]).