BARIN’s decision on next procedural steps against ticket tax: expedite appeal procedure before District Court
1. THE DECISION OF THE PRESIDENT OF THE DISTRICT COURT
1.1 On 19 March 2008, the President of the District Court of The Hague decided that the claim of BARIN, in short: that the ticket tax can not be executed because it violates article 15 of the Chicago Convention, has to be denied.
1.2 The President decided primarily that in summary proceedings, to set aside statutory law, it must be ‘unmistakable’ that the law is contrary to a directly applicable treaty provision. The President further ruled that it is not ‘unmistakable’ that the ticket tax is contrary to article 15 Chicago Convention, because article 15 is unclear.
2. THE DECISION OF BARIN FOR NEXT PROCEDURAL STEPS AGAINST TICKET TAX: EXPEDITE APPEAL PROCEEDINGS at the DISTRICT COURT
2.1 First, the BARIN decides to appeal against the interim decision of the President to the Court of Appeal in The Hague. The writ in appeal has been summoned to the State on 15 April 2008. The proceedings in appeal are interim proceedings too.
2.2 BARIN requested an expedite procedure in appeal, that will lead to a decision by the Court of Appeal within a few months.
2.3 the appeal will consist of a written Statement of Reply by the State, followed by oral pleadings, and a court decision.
3. GROUNDS FOR APPEAL
3.1 The grounds for appeal of the BARIN are the following.
3.2 In the first place, the criterion of ‘unmistakeableness’, used by the President to reject the claim of the BARIN, is not relevant when a statute (the ticket tax statute) is reviewed on the basis of a directly effective treaty provision, article 15 of the Chicago Convention (article 94 Constitution). This can be read in a Supreme Court decision of 2001.
3.3 In the second place, the way in which the President wrongly interpreted the Chicago Convention according to the criteria in the Vienna Treaty Convention how treaties are to be interpreted. The Vienna Treaty Convention stipulates – in essence – that a convention must be interpreted according to its wording in the light of the topic, context and aim of a convention. The travaux préparatoires may only be used if the wording is unclear.
3.4 In the third place the President denies, that the ticket tax is duty, a fee or any other charge levied by a Contracting State, as literally prohibited by the Chicago Convention. That the ticket tax is in violation of article 15, last sentence, Chicago Convention, has been elaborated in the writ of summons and in the pleading notes of BARIN in the interim proceedings and now in appeal. Our point of view is based on the wording, context and aim of the Chicago Convention. Our interpretation is supported by the highest Belgian Administrative Court, two opinions of expert professors in air law (prof. Haanappel and prof. Havel) and several commentators. Even if the criterion of ‘unmistakeableness’ would be applicable, the ticket tax is unmistakeably in violation of the Chicago Convention.
– The Oral Pleadings have take place at the District Court in The Hague on 3 July 2008
– Verdict date has been advanced from 31 July to 17 July 2008