Luxembourg, 22/10/2001 (Agence Europe) - Advocate General Siegbert Alber has proposed that the Court of Justice cancel the part of Council Regulation of 29 April 1999 that excludes the use of civil aeroplanes in the EU that have been completely re-engined only if the engines have what is known as a by-pass rate (of noise emissions) of three or more. Siegbert Alber concludes that there is a "manifest error in the assessment of appropriateness" of using the by-pass rate to determine whether to ban the use of planes equipped with new engines.
The cancellation of this part of the Regulation was requested by Omega Air, a company based on the Isle of Man that operates close to Dublin and Kent airports. It has equipped Boeing 707 with new Pratt & Whitney engines that it claims abide by the noise criteria set out in the 1944 Chicago Convention (that all Member States have joined, but not the European Union in its own right, Ed).
The by-pass rate is an additional criterion that cannot be used as the sole criterion in EU legislation, explains Siegbert Alber. "Further indications of the lack of necessity of a rule which fastens exclusively on by-pass ratio are the earlier references to by-pass ratio in Directives 92/14 and 85/629 and in ICAO Resolutions A31-11 and A32-8. They provide that aeroplanes may be certificated if they either comply with noise limits or have a by-pass ratio of two or more, or a high by-pass ratio as the case may be. Those provisions manifestly proceed from the assessment that aeroplanes with lower by-pass ratios too may be able to comply with noise limits", concludes Siegbert Alber.
Omega intends to equip Boeing 7007s with new engines which have a by-pass ratio of 1.74 and therefore do not meet the requirement set out in the EU Regulation. Omega claims that as a result of further technical measures, these aeroplanes are not in fact noisier, and are moreover cleaner and more economical.
Omega signals that it has already invested over EUR 40 million in its 7Q7 programme (out of a total investment of EUR 60 million) to re-engine Boeing 707s with new JT8D-219 engines manufactured by the US company Pratt & Whitney.
The British government, the Council, the Commission and the Irish Aviation Authority argue that the 1999 Regulation is valid, explaining to the Court that the use of a by-pass ratio of 3 is a less restrictive measure than setting new noise pollution and fuel consumption criteria, noting that there are relatively few re-engined planes.
In his conclusions, Advocate General Alber notes, "As regards anticipation of stricter international standards, European rules may well prejudice them politically, but certainly not as a matter of law."
Note that this case concerning planes equipped with new engines and has nothing to do with hushkits.
Omega had appealed to the High Court of Justice in London and the High Court of Dublin in order to challenge EU legislation.