The National Court has rejected the appeal filed by Aena against the decision of the National Markets and Competition Commission (CNMC) to oblige the airport manager to use the most up-to-date traffic data and not the five-year forecasts that Aena uses to set the proposed airport charges every year.
The ruling of the Contentious-Administrative Chamber, to which EL PAÍS has had access, gives the reason to the CNMC that it corrected the passenger traffic figures and the so-called maximum annual adjusted income per passenger (IMAAJ) that Aena contributed to make its 2019 airport tax proposal based on the forecasts contained in the 2017-2021 Airport Regulation Document (DORA). The regulator, which aligned itself with the position of the airline associations (IATA, ALA and ACETA), considered that it was necessary to use the most up-to-date air traffic figures and not merely the forecasts contained in that framework document that is established every five years to offer a stable rate scenario.
The ruling sets a precedent for the control of airport charges in the next five years (2022-2026), for which Aena has proposed an increase of 5.5%, which will have to be reviewed year by year with the figures of Most recent traffic and not with the forecast given by Aena for the whole period, report sources in the sector. The so-called DORA II must be approved by the Council of Ministers.
However, it does not have any practical consequences because Aena, although it appealed in court the resolution of the rates issued by the CNMC, with a price freeze in 2019, preemptively adopted the regulator’s criterion, which has now been supported by the Hearing. If the ruling had been to the contrary, Aena would be entitled to compensation if the difference between the income per passenger foreseen in the DORA and the actual income were in its favor, sources in the sector report.
Aena has confirmed that it was already applying the doctrine of the CNMC, but does not value the long-term effects that the ruling may have, according to a company spokeswoman.
Aena appealed the CNMC’s resolution on understanding that the regulator was exceeding its powers by correcting the DORA 2017-2021 traffic forecasts or estimates, considering that the role of the CNMC in tariff conflicts is to guarantee that Aena and airline associations are subject to the provisions of that framework document for the determination of all parameters, the DORA provisions being binding for all parties.
For the airport manager, the traffic forecast could not be modified. “If we modify these traffic forecasts or estimates halfway, we would be altering the risk and fortune of the airport manager, to the extent that each year the traffic forecasts or estimates could change and, with it, the losses or benefits that the deviation between real traffic and estimated traffic it could yield ”, he says.
Faced with this criterion, the National Court concludes that it corresponds to the CNMC, as an independent supervisory body, to verify that Aena has correctly applied the formulas for determining the average income per passenger, and, where appropriate, to review said action in the appropriate procedure, using to calculate the best estimate of the traffic available at any given time instead of the traffic expected in the DORA.
Deviation from forecasts due to the pandemic
The ruling sets a precedent by considering that it is the actual traffic data and not the forecasts that must be taken into account, as the pandemic has proven. It should be remembered that Aena maintains a double conflict regarding traffic forecasts: first, with the airlines that consider the claim to raise their rates between 2022 and 2026 by 5.5% as abusive (although the strongest increase was concentrated in 2026) taking into account a very optimistic passenger recovery scenario; and secondly, with the tenants of the commercial premises of the airports, who demand that the rents adjust to the collapse of air traffic in 2020 and 2021.
“On the other hand, reality shows, and recently it has been demonstrated with absolute clarity, the fallibility of DORA’s forecasts, initially in 2019 because the actual number of passengers was higher, and later, in 2020, by the consequences of the pandemic and the radical decrease in the number of passengers. The reality has exceeded the forecasts, one year leaving them well below, and another year leaving them well above what has been verified ”, states the sentence.
The CNMV ruled in favor of the appeal filed by the airline associations against the agreement of the Aena board of directors of July 24, 2018 in which the rates for 2019 were set. The regulator reviewed the parameters used by Aena to determine revenue annual average per passenger, so that for 2019 it was established at 10.43 euros per passenger compared to the 10.48 euros previously raised by the airport manager.