Opinion of the Advocate General — ECLI:EU:C:2022:20
Date: 2022-01-13
Language of the case: French
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Belgium

Translation C-353/20 – 1 
Case C-353/20 
Request for a preliminary ruling 
Date lodged: 
31 July 2020 
Referring court: 
Tribunal de l’Entreprise du Hainaut, division de Charleroi 
(Belgium) 
Date of the decision to refer 
23 July 2020 
Applicant: 
Skeyes 
Defendant: 
Ryanair DAC 
  
Tribunal de l’Entreprise du Hainaut, division de Charleroi 
(Companies Court, Hainaut, Charleroi Division) 
Order 
Chamber hearing applications for interim relief  
[Or. 2] 
IN THE MATTER OF: 
SKEYES, an autonomous public undertaking (formerly BELGOCONTROL), 
[…] established at […] BRUSSELS […]; 
Applicant in third party proceedings […]. 
v: 
RYANAIR D.A.C., a company incorporated under Irish law, established [at] 
[…] Swords […] (Ireland) […]; 
EN 
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Defendant in third party proceedings […]. 
[…] [procedural matters] 
After deliberation, the Court gives the following decision: 
SUBJECT MATTER OF THE DISPUTE 
1. SKEYES holds the monopoly in civil air traffic management and control services 
in Belgium; it is an ‘autonomous public undertaking’ within the meaning of the 
Law of 21 March 1991. 1 
Article 1 of the Law on public undertakings provides as follows: 
‘§ 1. Any public interest body which is to enjoy autonomy of management in a 
given industrial or commercial sector may, once its articles of association have 
been lawfully brought into line with the provisions of this Title, obtain such 
autonomy by concluding a management contract with the State in accordance 
with the conditions laid down in this Law. (…) 
§ 4. The bodies classified as autonomous public undertakings are: 
(…) 
4° Skeyes’ 
Article 170 of that Law states that: 
‘Skeyes shall have as its objects: 
1° to ensure the safety of air navigation in the airspace for which the Belgian 
State is responsible […] [Or. 3] […] 
[…]’ 
Article 171 provides: ‘The activities referred to in Article 170(1) to (3) shall 
constitute public service tasks’. 
As part of the measures designed to ensure air traffic safety, SKEYES is 
authorised to apply a ‘zero rate’ measure, which means that no aircraft may take 
off or land in, or transit through, Belgian airspace or certain sectors of that 
airspace. 
2. The tasks and objectives assigned to SKEYES by the Belgian State are defined in 
a management contract; at the time when the present dispute arose, the 
 
1 As amended by the Law of 16 December 2015 ‘amending the Law of 21 March 1991 reforming 
certain commercial public undertakings’. 
SKEYES 
 
3 
management contract concluded on 11 April 2014 was in force; that contract was 
subsequently extended as from 24 June 2019. 
3. It must further be noted that air traffic controllers who are members of SKEYES’ 
permanent staff are engaged under the staff regulations, without prejudice to 
SKEYES’ right to recruit staff under employment contracts. 2 
4. The airline RYANAIR operates in Belgium from Charleroi and Brussels airports. 
5. In the past, SKEYES has experienced episodes of industrial unrest, as evidenced 
by the judgment of the Cour d’Appel de Bruxelles (Court of Appeal, Brussels) of 
20 November 2017, 3 which – following an action brought by RYANAIR – held 
that SKEYES was in principle liable following a wildcat strike held in September 
2010. 
6. On several occasions between February and May 2019, SKEYES closed Belgian 
airspace because of a lack of available staff; the following incidents are 
established as having taken place: 
– Closure of the airspace between 22:00 on 12 February and 22:00 on 
13 February; SKEYES staff took part in the national strike on 13 February, 
causing flights to and from Belgian airports to be cancelled; 
– Action aimed at the targeted closure of Belgian airports on 12 and 13 March; 
each airport in turn was closed for 2 hours, Brussels from 22:00 and Charleroi 
between 04:00 and 06:00; 
– Action by the trade union representing air traffic controllers on 20 March 
which caused delays to departures and arrivals; [Or. 4] 
– Similar action on 28 March; 
– Action during the night of 15 to 16 April 2019 which resulted in the closure of 
Belgian airspace between midnight and 06:00; 
– Action on 16 May which resulted in closure of the airspace between 09:30 and 
13:00 (see below). 
RYANAIR explains that, in the majority of cases, airlines were not informed in 
good time and were therefore unable to limit the negative consequences of those 
actions for passengers. 
7. As a result of the last-mentioned action on 16 May 2019, RYANAIR lodged an 
application [for interim relief] on grounds of extreme urgency with this Court, 
 
2 Article 29(1)(2) of the Law of 21 March 1991. 
3 […] [references]; The judgment is the subject of an appeal before the Cour de cassation (Court 
of Cassation) on which judgment has not yet been given. 
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along with other applications lodged in Brussels and Liège; these applications to 
the courts were made within the context described below. 
8. In a press release issued on Friday 10 May 2019, SKEYES announced that a 
labour agreement had been signed which ‘the management will be implementing 
(…) in full and as soon as possible, in the interests of the business and the 
colleagues concerned’; following that agreement, several information sessions 
intended to update staff without disrupting air traffic control services were 
scheduled for 16 May 2019. 
9. However, on 16 May, SKEYES was once again forced to close Belgian airspace 
because many air traffic controllers were not a work, in circumstances described 
in the press release issued on the same day by SKEYES’ management: 
‘The industrial action at Skeyes is unjustified. The information sessions on the 
labour agreement at Skeyes are no reason for halting the operation. 
Skeyes’ management had invited the air traffic controllers to meetings today to 
explain to them the labour agreement that was concluded last Friday, 10 May. 
They were allowed to attend the meetings during their breaks at any time between 
10:00 and 19:00, so as to give everyone the opportunity to receive the necessary 
explanations at the most appropriate time and to avoid the need to halt the 
operation in order to do so. 
When the management found out that action had been taken to disrupt air traffic 
services on account of those information sessions, it was forced to cancel the 
meetings. 
Any further action will be deemed to be a wildcat strike. 
[…]’ 
10. Having suffered the impact of that impromptu closure of airspace, RYANAIR, at 
approximately 10:00 on 16 May 2019 itself, lodged a unilateral application [for 
interim relief] on grounds of extreme urgency under Article 584 of the Judicial 
Code, which this Court granted on the same day in the form of an order requiring 
SKEYES: ‘to provide the service over which it has a monopoly so that air traffic 
may operate normally, failure to do so being punishable by a financial penalty of 
EUR 250 000 for each hour that Belgian airspace remains closed on account of the 
strike by air traffic controllers’. 
The effects of that order were limited to the period from 16 to 24 May 2019. 
11. RYANAIR received the Court’s order by e-mail sent to it at 15:38 on 16 May 
itself, shortly after the airspace had been re-opened to air traffic; it served the 
order on SKEYES on 21 May 2019. As at 24 May 2019, no further disruption had 
been recorded. By the time the order ceased to be effective, therefore, no financial 
penalties had been imposed. [Or. 5]  
SKEYES 
 
5 
12. By application, served by bailiff, of 21 June 2019, SKEYES brought third party 
proceedings against the order of 16 May 2019; that application sought: 
– principally, a declaration from the court that it lacked jurisdiction to hear and 
determine the original application and, consequently, an order quashing the 
order under appeal; 
– in the alternative, a declaration from the court that it lacked jurisdiction to hear 
and determine the original application and an order referring the case to the 
President of the Tribunal de première instance francophone de Bruxelles (Court 
of First Instance (French-speaking), Brussels), or, in the alternative, to the 
President of the Tribunal de première instance du Hainaut – division Charleroi 
(Court of First Instance, Hainaut – Charleroi division), or, in the further 
alternative, to the Tribunal francophone de l’entreprise de Bruxelles 
(Companies Court (French-speaking), Brussels); 
– in the further alternative, a declaration that the original application was 
unfounded and, consequently, an order quashing the order under appeal; 
– in the further alternative, a declaration that the original application was 
unfounded inasmuch as it seeks the imposition of financial penalties in addition 
to the principal form of order sought and, consequently, an order quashing the 
order under appeal to that extent. 
DISCUSSION 
13 […] 
14 […] 4 [Or. 6] […] 5 
15 […] [Admissibility of the third party proceedings brought by Skeyes] 
16. With a view to having the order of 16 May 2019 quashed, SKEYES raises two 
arguments alleging lack of jurisdiction. 
It submits first that this Court lacked jurisdiction to hear an application concerning 
its function as controller of Belgian airspace. 
In the alternative, SKEYES submits that, as a company governed by public law, it 
cannot fall within the jurisdiction of the Tribunal de l’Entreprise (Business Court). 
17. In the first place, SKEYES argues that this Court lacked jurisdiction to hear and 
determine RYANAIR’s application for an order requiring the air traffic control 
operator to re-open Belgian airspace. 
 
4 […] 
5 […] 
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In SKEYES’ view, RYANAIR has no subjective right permitting it to make such 
an application; it recalls that the regulation of Belgian airspace comes under 
SKEYES’ discretionary power as an autonomous public undertaking which is 
alone in a position to assess the conditions under which that airspace is to be 
regulated. 
18. The Court’s position: Courts and tribunals hear and determine applications based 
on a subjective right; a subjective right entails the existence of a precise legal 
obligation which a rule of objective law imposes directly on another person and 
which the applicant has a personal interest in having enforced. 6 
19. RYANAIR’s unilateral application was based on the existence of subjective rights 
on its part; in that application, RYANAIR thus stated the following […]: 
‘In the context of fine weather and the approaching summer holidays, these 
repeated strikes and this wildcat strike in particular expose RYANAIR – like other 
airlines – to [Or. 7] serious and irreparable damage arising from flight 
cancellations or delays, operational disruption, traveller dissatisfaction and the 
significant obligations incumbent on RYANAIR under Article 9 of Regulation (EC) 
No 261/2004 (…). For, although the air traffic controllers’ strike is an 
extraordinary circumstance enabling the carrier not to pay the compensation 
provided for in the event of flight delays or cancellations, it is still required to take 
care of and assist passengers, including, where appropriate, by providing them 
with hotel accommodation, which comes at an extremely high cost’. 
20. The Court notes that these arguments are underpinned by a claim as to the 
following subjective rights: 
– as a corollary of the freedom to conduct business, recognised by the Court of 
Justice of the European Union as a general principle of EU law, 7 RYANAIR’s 
right not to be disproportionately hampered in the pursuit of its airline business 
by decisions taken by the public authority the consequence of which is that: the 
airline is faced with extraordinary levels of expenditure, human resource 
management issues and uncontrollable damage to its image and reputation 
some of which will be difficult to remedy; 
– in the case of breaches attributable to SKEYES, the right to bring against that 
company an action for damages similar to that already brought by RYANAIR 
against SKEYES, which resulted in the judgment of 7 November 2017 […] by 
which the Cour d’appel de Bruxelles (Court of Appeal, Brussels) upheld the 
order by which the court of first instance ordered SKEYES – pursuant to the 
third subparagraph of Article 1384 of the Civil Code – to make good the 
damage suffered by RYANAIR as a result of a 24-hour wildcat strike called by 
 
6 […] [references to national case-law] 
7 […] [references to legal literature] 
SKEYES 
 
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SKEYES’ teams on 28 September 2010 (SKEYES has lodged an appeal in 
cassation against that judgment); 
– as a corollary of the right to reparation, the right to limit the damage suffered, 
in this particular case by seeking, by application, an order prohibiting 
SKEYES, under penalty of a fine, from closing the airspace once again because 
of internal problems. 
21. Is it the case, contrary to what SKEYES maintains, that the subjective rights thus 
claimed provide grounds for users (air carriers) to seek their protection before the 
ordinary courts? 
SKEYES is an autonomous public undertaking governed by Belgian law whose 
activities, by definition, have cross-border aspects; consequently, the rules of 
European law are necessarily relevant in determining what rights users enjoy in 
relation to such an entity. 
This is the purport of recital 24 of Regulation (EC) No 549/2004 (see the full 
citation below): ‘(…) the objective of this Regulation, namely the creation of the 
single European sky, cannot be sufficiently achieved by the Member States, by 
reason of the transnational scale of the action, and can therefore be better 
achieved at Community level, while allowing for detailed implementing rules that 
take account of specific local conditions (…)’ 
22. At European level, the following texts must therefore be taken into account: [Or. 
8]  
Regulation (EC) No 549/2004 of the European Parliament and of the Council 
of 10 March 2004 laying down the framework for the creation of the single 
European sky (the framework Regulation) 
Article 4 
National supervisory authorities 
1. Member States shall jointly or individually either nominate or establish a 
body or bodies as their national supervisory authority in order to assume the tasks 
assigned to such authority under this Regulation and under the measures referred 
to in Article 3. 
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 (the service provision Regulation) 
Preamble 
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(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. 
(6) Member States are responsible for monitoring the safe and efficient 
provision of air navigation services and for the control of compliance by air 
navigation service providers with the common requirements established at 
Community level. 
(13) The provision of communication, navigation and surveillance services, as 
well as aeronautical information services, should be organised under market 
conditions whilst taking into account the special features of such services and 
maintaining a high level of safety. 
Article 8 
Designation of air traffic service providers 
1. Member States shall ensure the provision of air traffic services on an 
exclusive basis within specific airspace blocks in respect of the airspace under 
their responsibility. For this purpose, Member States shall designate an air traffic 
service provider holding a valid certificate in the Community. 
3. Member States shall define the rights and obligations to be met by the 
designated air traffic service providers. The obligations may include conditions 
for the timely supply of relevant information enabling all aircraft movements in 
the airspace under their responsibility to be identified. 
4. Member States shall have discretionary powers in choosing an air traffic 
service provider, on condition that the latter fulfils the requirements and 
conditions referred to in Articles 6 and 7. 
23. SKEYES states that, owing to its status as ‘air traffic services provider’ for 
Belgium and the discretionary power conferred upon it, it falls outside the scope 
of any judicial review with respect to any breaches of which it might be accused 
in the exercise of its prerogatives. 
That position appears to contradict European Union law. [Or. 9] 
After all, although – in accordance with the provisions of EU law – the national 
authorities define the rights and obligations of organisations such as SKEYES, the 
fact remains that those authorities appear to be required, when defining those 
rights and obligations, to ensure that users have an effective remedy against any 
breaches on the part of the public undertaking. 
This Court must therefore ascertain whether, despite the discretionary power 
vested in SKEYES, the effect of which is to make that company the sole arbiter – 
from the point of view of the public interest – of whether its decisions are 
SKEYES 
 
9 
appropriate, the subjective rights which RYANAIR seeks to have protected are 
capable of allowing it to compel SKEYES to account for the conditions under 
which that discretionary power is exercised; that question is described as ‘moot’ in 
legal literature. 8 
24. In several decisions, the Cour de cassation (Court of Cassation) has recognised 
that an applicant may have recourse to the ordinary courts, even if the 
administrative authority’s right to act is discretionary. It is not inconceivable, after 
all, that the authority might commit a wrongful act by infringing a subjective right 
or, even in the absence of such a right, by not exercising its discretionary power as 
a normally prudent administrative authority would have done in the same 
circumstances. 
Thus, in a landmark judgment of 26 March 2009, 9 the Cour de cassation (Court of 
Cassation) stated the following: 
‘An administrative authority which takes a decision by virtue of its discretionary 
power enjoys a discretion which allows it, within the limits of the law, to 
determine itself the ways in which it will exercise its competence and to choose the 
solution it considers most appropriate. The ordinary courts have jurisdiction to 
prevent or make good any wrongful infringement of a subjective right by an 
administrative authority in the exercise of its discretionary power’. 10 
It follows from that case-law that the important factor in an examination of 
whether the ordinary courts have jurisdiction is the right relied on by the 
applicant. If the right relied on is a subjective right (and the applicant has an 
immediate, real and current interest in relying on it), the application falls within 
the jurisdiction of the ordinary courts. Whether the application is well-founded is 
another matter the resolution of which will have to take into account the particular 
status of the administrative authority. 
25. This Court notes that the judgments in which the Cour de cassation (Court of 
Cassation) examines the boundaries of an administrative authority’s discretionary 
power are concerned with the law on foreign nationals, the rules of which are 
essentially national. 
The dispute in the case at issue has to do with the very European rules which were 
described above and with which each Member State of the European Union must 
comply as a matter of priority. 
Consequently, in order to determine what, if any, limits are attached to the 
discretionary power granted to European sky operators, the Court considers itself 
 
8 […] [references to legal literature] 
9 […] [references] 
10 […] [references to case-law] 
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bound to refer to the Court of Justice of the European Union the questions set out 
in the operative part of this judgment. [Or. 10]  
ON THOSE GROUNDS 
I, […]President of the Tribunal de l’Entreprise du Hainaut (Companies 
Court, Hainaut), […] 
[…] [procedural matters, admissibility of the third party proceedings, need for a 
reference for a preliminary ruling]  
Therefore refer the following questions to the Court of Justice of the 
European Union for a preliminary ruling under Article 267 of the Treaty on 
the Functioning of the EU: 
1. 
Must Regulation No 550/2004, in particular Article 8 thereof, be interpreted as 
meaning that it authorises the Member States to remove from review by the courts 
of that Member State any alleged failures to fulfil the obligation to provide 
services by the air traffic services provider, or must the provisions of that 
regulation be interpreted as meaning that they require the Member States to 
provide an effective remedy against any such alleged breaches, account being 
taken of the nature of the services to be provided? 
2. 
Must Regulation No 550/2004, inasmuch as it states that ‘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 on competition’, be interpreted as precluding 
not only the rules on competition per se, but also any other rules applicable to 
public undertakings active on a market for goods and services which have an 
indirect effect on competition, such as those prohibiting hindrances to the freedom 
to conduct business and to provide services ? 
[…] [stay of proceedings, provisional enforcement, procedural matters] 
This decision was delivered at the extraordinary public hearing of the 
TWENTY THIRD OF JULY TWO THOUSAND AND TWENTY, in the 
Chamber hearing applications for interim relief. 
[…] [signatures]