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BARIN v. The State of The Netherlands

2009 July 20

Board of Airline Representatives in The Netherlands v. The State of The Netherlands (Ministry of Finance)

Court: Netherlands Supreme Court

Date: July 10th, 2009

LJN Number: BI3450

Case: In July of 2008, the Dutch government introduced a new air passenger duty, the so-called ticket tax. This tax was levied for all flights departing from airports in The Netherlands. A tax of € 11.25 was introduced for passengers whose destination was within the European Union or whose flights would be 2.500 kilometers or less. For all other flights, the tax was € 45.00.

BARIN, the Board of Airline Representatives in The Netherlands, did not agree with this new tax, and stated that the tax was in breach of article 15 of the Chicago Convention (Convention on International Civil Aviation of December 7, 1944). This article reads: "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."

Before the introduction of the tax, BARIN started interlocutory proceedings. BARIN asked the court for an injunction against the State of The Netherlands to withhold the introduction of the new tax until the proceedings on the merits of the lawfulness of the tax had ended with a final judgment.

Held: The Netherlands Supreme Court confirmed the decisions of the lower courts not to grant an injunction. To withhold the new law from being introduced, an injunction may only be granted in case of a manifest breach of the Chicago Convention. The Supreme Court does not agree with BARIN's assertion that "other fees" in Article 15 should be interpreted as broadly as possible, in that the right for passengers to depart from a country may not be subdued to any levies whatsoever. The parliamentary debate regarding the introduction of the tax states that the objective of the tax is to provide clarity regarding the "public costs" of flying. The tax is levied "as is", without any counter-obligation from the Dutch Government. From the legislative history of the Chicago Convention, it appears that one may only speak of "charges" within the meaning of Article 15 when these charges are levied in relation to a certain performance of the other party. A tax such as the ticket tax is not covered by Article 15. Therefore, the lower courts have rightfully refused the injunction.

An interesting detail is that the ticket tax was abolished exactly one year after its introduction, on the 1st of July, 2009. According to the State Secretary for Finance, this is done to reduce the effects of the economic crisis on the travel industry.

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