Common use of Ltd and ▇ Clause in Contracts

Ltd and ▇. ▇. ▇▇▇ (Oxford) Land Ltd v. the United Kingdom 44302/02 [2007] ECLI:CE:ECHR:2007:0830JUD004430202, paragraph 61. the slots they hold renewed in the next equivalent season if they operate them according to the 80% threshold. Therefore, historic slots could be interpreted by airlines as “possessions” in the sense of Article 1 of the First Protocol to the ECHR.1031 Law firm ▇▇▇▇▇ & Co, which undertook the legal analysis underpinning the ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (2011) study, deems it unlikely that a challenge on such grounds would succeed, provided sufficient notice were given of the intention to limit or end grandfather rights.1032 Furthermore, as described at the start of this section, a property claim may only be regarded as a possession when it is sufficiently established to be enforceable. In other words, a legal person who complains of a violation of his or her right to property laid down in Article 1 of the First Protocol to the ECHR must first of all show that such a right existed, as has also been confirmed by the court on various occasions.1033 A conditional claim which lapses following the non-fulfillment of the condition cannot be considered a possession.1034 As historic slots were always allocated conditionally to airlines,1035 it follows that they cannot be considered possessions and, as such, they do not qualify to get protection from Article 1 of the First Protocol to the ECHR. Hence, an airline would also not be entitled to compensation by the State for any damage incurred. Even if historic slots were seen as possessions instead of as conditional claims, it is questionable whether historic slots are enforceable against third parties and whether the non- intervention criterion can be upheld. Pursuant to Article 1 of the First Protocol to the ECHR, States have a wide power to interfere with the right to property if such an intervention pursues the general or public interest.1036 Moreover, three conditions must be fulfilled cumulatively before a State may interfere: interference with the right to property shall be allowed only if (1) it is prescribed by law, (2) it is in the public interest, and (3) it is necessary in a democratic society. The first condition shows that it is imperative that the requirement of legality is satisfied. After all, the principle of legal certainty is one of the fundamental principles of a democratic society.1037 Since domestic authorities have a better knowledge of their society and its needs, the Court is of the opinion that domestic authorities are usually better placed than the Court to establish what is in the public interest.1038 The Court will therefore respect their judgment as to whether or not something is in the public interest, unless that judgment is manifestly without reasonable foundation.1039 Hence, a wide variety of arguments could 1031 See ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, supra note 69, at 140. 1032 Id., at 140. 1033 See Council of Europe, supra note 1027, at 5, 7 and 8. Furthermore, the Court held in various cases that the protection of Article 1 does not apply unless it is possible to lay a claim to certain property, see ▇▇▇▇▇▇▇▇▇ v. the Czech Republic 73578/01, ECLI:CE:ECHR:2004:1026JUD007357801, paragraph 38; Zhigalev v. Russia 54891/00, ECLI:CE:ECHR:2006:0706JUD005489100, paragraph 131. Moreover, in ▇▇▇▇▇▇ v. Belgium 6833/74, ECLI:CE:ECHR:1979:0613JUD000683374, paragraph 50 the ECHR clarified that the scope of Article 1 of the First Protocol to the ECHR only applies to existing possessions, and “does not guarantee the right to acquire possessions”. 1034 Prince ▇▇▇▇-▇▇▇▇ ▇▇ of Liechtenstein v. Germany 42527/98, ECLI:CE:ECHR:2001:0712JUD004252798, paragraphs 82-83. 1035 The 80% utilization threshold serves as a conditio sine qua non for continued operations in the next equivalent season. Moreover, other conditions may be attached to a slot. Inter alia, a slot may only have been allocated for use by a new entrant, on the basis of year-round priority or for other reasons depending on locally identified allocation criteria. See Chapter 2, section 2.2.3 for an explanation on allocation priorities pursuant to the WASG. 1036 See Council of Europe, supra note 1027, at 5. 1037 Id. at 12. 1038 For an analysis of the subsidiarity principle applied to slot coordination, see Chapter 4, section 4.3.5.4 of this dissertation. 1039 See Council of Europe, supra note 1027, at 14. support an intervention with historic rights, including but not limited to environmental, safety and competition concerns, as long as the intervention eventually benefits the consumer to meet the public interest criterion and having regard to proportionality.1040 Lastly, any intervention that is prescribed by law and in the public interest, must also be necessary in a democratic society.1041 Additionally, although airline companies are legal persons that may rely on human rights protection, they may find it more challenging to succeed in their appeal as compared to natural persons.1042 The debate on whether a State may intervene with historic slots would likely focus on whether the benefits of the modification or withdrawal of a historic slot would sufficiently outweigh the benefits of schedule stability and continuity offered by incumbent airlines. When the reasons underpinning the intervention fulfill the three cumulative conditions mentioned above,1043 the intervention could be regarded proportionate and not in breach of Article 1 of the First Protocol to the ECHR.1044 In the hypothetical situation that airlines would be able to rely on the protection offered by Article 1, it is doubtful whether a damage action against a public authority subsequent to the interference – whether by modification or withdrawal – with a slot would succeed.1045 Haanappel (1994) stresses that, in many jurisdictions “. . . courts might actually require an intention to harm rather than mere negligence; or courts could reason that public authority should have a wide margin of policy choice and not be easily actionable for damages in such a sensitive field of public policy, involving the allocation of a scarce resource.”1046 Slot ownership and the division of responsibilities under the slot regime Another argument why historic slots should not be regarded as airline possessions enforceable to third parties is found in the inextricable link between slots and airport infrastructure discussed in Chapter 2, section 2.1.2, and in the distribution of responsibilities identified in the WASG.1047 If, for whatever reason,1048 the capacity of the airport would not be sufficient anymore to accommodate a particular slot, it could be deemed highly contentious to continue renewing the slot simply because the airline has acquired historic rights over the slot. The possession of historical rights could qualify as a possession under Article 1 of the First Protocol to the ECHR. Even though Article 1 provides an exemption for States to intervene with possessions if this is considered to be in the “public interest”, a qualification of historic rights 1040 The principle of proportionality holds that any interference should take place on the basis of a trade-off between the collective interest and the interests of an individual, and in such a manner which is not arbitrary and in accordance with the law. Id. at 5. 1041 Id. at 12. 1042 For companies, the consequences of an intervention are more likely to be regarded as an incident of their business arrangements. See ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, supra note 69, at 141. 1043 The criteria used to identify the things that can be objects of property include: economic value, alienability and non-interference or enforceability against third parties. See Emerich, supra note 1013, at 194. 1044 See ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, supra note 69, at 141. 1045 See Haanappel, supra note 151, at 201. 1046 Id., at 202. 1047 According to paragraphs 5.3, 5.4 and 5.5 of the WASG, the role of airlines in slot coordination is being the recipients of slots, which are allocated to them by the independent coordinator in a neutral, transparent and non- discriminatory way. Airports are responsible for the declaration of the coordination parameters, as discussed in Chapter 2, section 2.2.2 of this dissertation. According to Article 4(5) of the Slot Regulation, “[t]he coordinator shall be the sole person responsible for the allocation of slots”. 1048 Exempli gratia, when the number night flights has to be reduced for noise nuisance purposes. At Amsterdam Airport Schiphol, the amount of night flights will go down from 32,000 to a maximum of 29,000 per year in the coming years. See Airport Coordination Netherlands (ACNL), Advice reduction night flights Schiphol (2021).

Ltd and ▇. ▇. ▇▇▇ (Oxford) Land Ltd v. the United Kingdom 44302/02 [2007] ECLI:CE:ECHR:2007:0830JUD004430202, paragraph 61. the slots they hold renewed in the next equivalent season if they operate them according to the 80% threshold. Therefore, historic slots could be interpreted by airlines as “possessions” in the sense of Article 1 of the First Protocol to the ECHR.1031 Law firm ▇▇▇▇▇ & Co, which undertook the legal analysis underpinning the ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (2011) study, deems it unlikely that a challenge on such grounds would succeed, provided sufficient notice were given of the intention to limit or end grandfather rights.1032 Furthermore, as described at the start of this section, a property claim may only be regarded as a possession when it is sufficiently established to be enforceable. In other words, a legal person who complains of a violation of his or her right to property laid down in Article 1 of the First Protocol to the ECHR must first of all show that such a right existed, as has also been confirmed by the court on various occasions.1033 A conditional claim which lapses following the non-fulfillment of the condition cannot be considered a possession.1034 As historic slots were always allocated conditionally to airlines,1035 it follows that they cannot be considered possessions and, as such, they do not qualify to get protection from Article 1 of the First Protocol to the ECHR. Hence, an airline would also not be entitled to compensation by the State for any damage incurred. Even if historic slots were seen as possessions instead of as conditional claims, it is questionable whether historic slots are enforceable against third parties and whether the non- intervention criterion can be upheld. Pursuant to Article 1 of the First Protocol to the ECHR, States have a wide power to interfere with the right to property if such an intervention pursues the general or public interest.1036 Moreover, three conditions must be fulfilled cumulatively before a State may interfere: interference with the right to property shall be allowed only if (1) it is prescribed by law, (2) it is in the public interest, and (3) it is necessary in a democratic society. The first condition shows that it is imperative that the requirement of legality is satisfied. After all, the principle of legal certainty is one of the fundamental principles of a democratic society.1037 Since domestic authorities have a better knowledge of their society and its needs, the Court is of the opinion that domestic authorities are usually better placed than the Court to establish what is in the public interest.1038 The Court will therefore respect their judgment as to whether or not something is in the public interest, unless that judgment is manifestly without reasonable foundation.1039 Hence, a wide variety of arguments could 1031 See ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, supra note 69, at 140. 1032 Id., at 140. 1033 See Council of Europe, supra note 1027, at 5, 7 and 8. Furthermore, the Court held in various cases that the protection of Article 1 does not apply unless it is possible to lay a claim to certain property, see ▇▇▇▇▇▇▇▇▇ v. the Czech Republic 73578/01, ECLI:CE:ECHR:2004:1026JUD007357801, paragraph 38; Zhigalev ▇▇▇▇▇▇▇▇ v. Russia 54891/00, ECLI:CE:ECHR:2006:0706JUD005489100, paragraph 131. Moreover, in ▇▇▇▇▇▇ v. Belgium 6833/74, ECLI:CE:ECHR:1979:0613JUD000683374, paragraph 50 the ECHR clarified that the scope of Article 1 of the First Protocol to the ECHR only applies to existing possessions, and “does not guarantee the right to acquire possessions”. 1034 Prince ▇▇▇▇-▇▇▇▇ ▇▇ of Liechtenstein v. Germany 42527/98, ECLI:CE:ECHR:2001:0712JUD004252798, paragraphs 82-83. 1035 The 80% utilization threshold serves as a conditio sine qua non for continued operations in the next equivalent season. Moreover, other conditions may be attached to a slot. Inter alia, a slot may only have been allocated for use by a new entrant, on the basis of year-round priority or for other reasons depending on locally identified allocation criteria. See Chapter 2, section 2.2.3 for an explanation on allocation priorities pursuant to the WASG. 1036 See Council of Europe, supra note 1027, at 5. 1037 Id. at 12. 1038 For an analysis of the subsidiarity principle applied to slot coordination, see Chapter 4, section 4.3.5.4 of this dissertation. 1039 See Council of Europe, supra note 1027, at 14. support an intervention with historic rights, including but not limited to environmental, safety and competition concerns, as long as the intervention eventually benefits the consumer to meet the public interest criterion and having regard to proportionality.1040 Lastly, any intervention that is prescribed by law and in the public interest, must also be necessary in a democratic society.1041 Additionally, although airline companies are legal persons that may rely on human rights protection, they may find it more challenging to succeed in their appeal as compared to natural persons.1042 The debate on whether a State may intervene with historic slots would likely focus on whether the benefits of the modification or withdrawal of a historic slot would sufficiently outweigh the benefits of schedule stability and continuity offered by incumbent airlines. When the reasons underpinning the intervention fulfill the three cumulative conditions mentioned above,1043 the intervention could be regarded proportionate and not in breach of Article 1 of the First Protocol to the ECHR.1044 In the hypothetical situation that airlines would be able to rely on the protection offered by Article 1, it is doubtful whether a damage action against a public authority subsequent to the interference – whether by modification or withdrawal – with a slot would succeed.1045 Haanappel (1994) stresses that, in many jurisdictions “. . . courts might actually require an intention to harm rather than mere negligence; or courts could reason that public authority should have a wide margin of policy choice and not be easily actionable for damages in such a sensitive field of public policy, involving the allocation of a scarce resource.”1046 Slot ownership and the division of responsibilities under the slot regime Another argument why historic slots should not be regarded as airline possessions enforceable to third parties is found in the inextricable link between slots and airport infrastructure discussed in Chapter 2, section 2.1.2, and in the distribution of responsibilities identified in the WASG.1047 If, for whatever reason,1048 the capacity of the airport would not be sufficient anymore to accommodate a particular slot, it could be deemed highly contentious to continue renewing the slot simply because the airline has acquired historic rights over the slot. The possession of historical rights could qualify as a possession under Article 1 of the First Protocol to the ECHR. Even though Article 1 provides an exemption for States to intervene with possessions if this is considered to be in the “public interest”, a qualification of historic rights 1040 The principle of proportionality holds that any interference should take place on the basis of a trade-off between the collective interest and the interests of an individual, and in such a manner which is not arbitrary and in accordance with the law. Id. at 5. 1041 Id. at 12. 1042 For companies, the consequences of an intervention are more likely to be regarded as an incident of their business arrangements. See ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, supra note 69, at 141. 1043 The criteria used to identify the things that can be objects of property include: economic value, alienability and non-interference or enforceability against third parties. See Emerich▇▇▇▇▇▇▇, supra note 1013, at 194. 1044 See ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, supra note 69, at 141. 1045 See Haanappel, supra note 151, at 201. 1046 Id., at 202. 1047 According to paragraphs 5.3, 5.4 and 5.5 of the WASG, the role of airlines in slot coordination is being the recipients of slots, which are allocated to them by the independent coordinator in a neutral, transparent and non- discriminatory way. Airports are responsible for the declaration of the coordination parameters, as discussed in Chapter 2, section 2.2.2 of this dissertation. According to Article 4(5) of the Slot Regulation, “[t]he coordinator shall be the sole person responsible for the allocation of slots”. 1048 Exempli gratia, when the number night flights has to be reduced for noise nuisance purposes. At Amsterdam Airport Schiphol, the amount of night flights will go down from 32,000 to a maximum of 29,000 per year in the coming years. See Airport Coordination Netherlands (ACNL), Advice reduction night flights Schiphol (2021).