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The proposed amendment to the UK air passenger duty - is it legal re. Article 15 Chicago Convention?

Beaumont & Son Aviation at Clyde & Co- Beaumont Bulletin by John Balfour - June 2008

The Daily Telegraph on 7 June contained an intriguing story about a strongly worded diplomatic protest from the US about the UK Government's plans to reform Air Passenger Duty by changing it to a per aircraft tax based on size of aircraft and length of journey, which would significantly increase taxes payable on transatlantic flights, among others. As well as denying that the new tax would have any environmental benefit (as claimed by the UK Government), the US Government claims that it would be inconsistent with international laws, although in what specific ways has not been disclosed. It is interesting to consider what the grounds for such claims might be, and what merit there is in them. The principal ground seems to be Article 15 of the Chicago Convention 1944, and there may also be a ground under the recently signed US/EC Aviation Agreement.

Article 15 Chicago Convention
Article 15 of the Chicago Convention is headed "Airport and similar charges". After stating the principle that public use airports should be open under uniform conditions to all aircraft, and principles as to charges for the use of airports and air navigation facilities, it ends with the words:
"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".
This raises two questions in relation to the proposed amendment of APD:
Is it a fee, due or other charge?
Is it imposed in respect solely of the right of transit/entry/exit?
Both these questions require detailed analysis, but, briefly:
The rules for interpretation of treaties (which include consideration of the ordinary meaning of the words and their context, the object and purpose of the treaty, State practice in application and authentic texts of the treaty in various languages) on the whole suggest that taxes are included. Although the English text does not use the word "taxes", the equivalent word is used in both the Spanish and Russian texts. Arguments to contrary effect may be based on State practice of failing to object to similar taxes (especially current APD), but the fact that such practice appears to be entirely negative, as opposed to positively approving or endorsing the levying of taxes, throws doubt on their strength.
It may be anticipated that the UK Government would argue that the tax is not imposed "solely" in respect of the right of transit/entry/exit, principally on the basis that it will also apply to domestic flights within the UK. However, this would have the result that States could impose fees, dues and charges on international air transport, unless they also imposed them on domestic transport, which is unlikely to have been the intention of States negotiating a convention on international air transport. This suggests that the issue is to be looked at from the point of view of the particular aircraft and passengers on it: from the point of view of an aircraft on an international flight, the tax would be solely in respect of exit from the UK.

The EC/US Aviation Agreement
The only possibly relevant part of the EC/US Aviation Agreement (which came into provisional effect on 30 March this year) is Article 11, which provides that aircraft operated in international air transportation by the airlines of one party shall be exempt from "all import restrictions, property taxes and capital levies, customs duties, excise taxes, and similar fees and charges" imposed by the other party. It could be argued that APD falls within the scope of these words but such argument seems unlikely to succeed.
There seems to be a reasonably strong argument that the new tax would be contrary to Article 15.
Consequently, there seems to be a reasonably strong argument that the new tax would be (and indeed that current APD is) contrary to Article 15, but a less strong argument of contravention of the EC/US Agreement. It will be interesting to see whether the UK Government backs down (again) or, if not, whether the US will pursue its claims in court. With countries increasingly using aviation as a way of raising tax revenues, the legality of such taxes has a much wider significance.
For further information, please contact John Balfour.
Beaumont & Son Aviation at Clyde & Co
51 Eastcheap
London EC3M 1JP
United Kingdom
Tel: +44 (0) 20 7623 1244
Fax: +44 (0) 20 7623 5427
Email: enquiries@beaumontclydeco.com
Website: www.clydeco.com

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