# C_2011030EN.01002601.xml

| 29.1.2011 | EN | Official Journal of the European Union | C 30/26 |
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29.1.2011

EN

Official Journal of the European Union

C 30/26

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Appeal brought on 23 November 2010 by Schweizerische Eidgenossenschaft against the judgment delivered on 9 September 2010 in Case T-319/05 Schweizerische Eidgenossenschaft v European Commission, other parties to the proceedings: European Commission, Federal Republic of Germany, Landkreis Waldshut

(Case C-547/10 P)

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2011/C 30/43

Language of the case: German

Parties

Parties

Appellant: Schweizerische Eidgenossenschaft (represented by: S. Hirsbrunner, Rechtsanwalt)

Appellant:

Other parties to the proceedings: European Commission, Federal Republic of Germany, Landkreis Waldshut

Other parties to the proceedings:

Forms of order sought

Forms of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of 9 September 2010 in Case T-319/05, in accordance with Article 61 of the Statute of the Court of Justice; |
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set aside the judgment of the General Court of 9 September 2010 in Case T-319/05, in accordance with Article 61 of the Statute of the Court of Justice;

| — | should the Court decide that the state of the proceedings permits a decision by the Court, annul Commission Decision 2004/12/EC of 5 December 2003, and order the European Commission to pay the costs of the whole proceedings, including the costs of the proceedings at first instance, pursuant to the first paragraph of Article 122 of the Rules of Procedure of the Court of Justice; |
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should the Court decide that the state of the proceedings permits a decision by the Court, annul Commission Decision 2004/12/EC of 5 December 2003, and order the European Commission to pay the costs of the whole proceedings, including the costs of the proceedings at first instance, pursuant to the first paragraph of Article 122 of the Rules of Procedure of the Court of Justice;

| — | should the Court decide that the state of the proceedings does not permit a decision by the Court, remit the case to the General Court for a decision on the basis of its legal assessment and reserve the issue of the costs of the appeal for a decision by that court. |
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should the Court decide that the state of the proceedings does not permit a decision by the Court, remit the case to the General Court for a decision on the basis of its legal assessment and reserve the issue of the costs of the appeal for a decision by that court.

Pleas in law and main arguments

Pleas in law and main arguments

The appeal is against the judgment of the General Court of 9 September 2010 in Case T-319/05 (‘the judgment under appeal’). In the judgment under appeal, the General Court dismissed the action for annulment brought by the appellant against Commission Decision 2004/12/EC of 5 December 2003 (‘the contested decision’) the 213th regulation for the implementation of German air traffic regulations establishing procedures for instrument-guided landings and take-offs at Zurich airport (‘the 213th Regulation’), as amended by the first amending regulation 1 April 2003 (‘the disputed German measure’).

The appellant raises the following pleas:

| 1. | The Court made an error of law in its interpretation and application of Article 9(1) of Regulation No 2408/92, in so far as the Court took the view that its scope only included prohibitions on the exercise of traffic rights. Furthermore, the Court failed to have regard to the fact that such an interpretation of Article 9(1) of Regulation No 2408/92, even if possible in the EU context, cannot be relied on against the applicant under Article 1(2) of the Agreement. |
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1.

The Court made an error of law in its interpretation and application of Article 9(1) of Regulation No 2408/92, in so far as the Court took the view that its scope only included prohibitions on the exercise of traffic rights. Furthermore, the Court failed to have regard to the fact that such an interpretation of Article 9(1) of Regulation No 2408/92, even if possible in the EU context, cannot be relied on against the applicant under Article 1(2) of the Agreement.

| 2. | The Court misinterpreted and misapplied the obligation to state reasons within the meaning of Article 296 of the TFEU (formerly Article 253 EC), by not objecting to the Commission excluding without explanation the applicability of Article 9(1) of Regulation No 2408/92. Furthermore, the Court erred in considering that, when the Commission replaced the reasoning in the contested decision with a completely new ‘explanation’, that it was not a substitution of reasoning in the court proceedings. |
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2.

The Court misinterpreted and misapplied the obligation to state reasons within the meaning of Article 296 of the TFEU (formerly Article 253 EC), by not objecting to the Commission excluding without explanation the applicability of Article 9(1) of Regulation No 2408/92. Furthermore, the Court erred in considering that, when the Commission replaced the reasoning in the contested decision with a completely new ‘explanation’, that it was not a substitution of reasoning in the court proceedings.

| 3. | The Court erred in law in its interpretation and application of Article 8(3) of Regulation No 2408/92, by failing to take account of the rights of the airport operator and the people living around the airport. |
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3.

The Court erred in law in its interpretation and application of Article 8(3) of Regulation No 2408/92, by failing to take account of the rights of the airport operator and the people living around the airport.

| 4. | The Court misinterpreted and misapplied the principle of non-discrimination. It erred in law by excluding the rights of the airport operator and the Swiss people living around the airport from its analysis. Contrary to the forms of order sought by the applicant, the Court refused to consider whether the measures were necessary. It did not apply in a sufficiently strict manner the requirement of a justification on objective grounds. The interest in promoting a tourist area does not warrant protection, since economic interests cannot constitute objective justifications. |
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4.

The Court misinterpreted and misapplied the principle of non-discrimination. It erred in law by excluding the rights of the airport operator and the Swiss people living around the airport from its analysis. Contrary to the forms of order sought by the applicant, the Court refused to consider whether the measures were necessary. It did not apply in a sufficiently strict manner the requirement of a justification on objective grounds. The interest in promoting a tourist area does not warrant protection, since economic interests cannot constitute objective justifications.

| 5. | The proportionality test applied by the Court is marked by serious errors of law. The Court distorted the evidence. The Court failed to establish the facts in an adequate manner. In disregard of its own right of review, it substituted the Commission's establishment of the facts for its own. In disregard of the right to be heard, it based its reasoning on facts on which the appellant had not presented its comments. |
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5.

The proportionality test applied by the Court is marked by serious errors of law. The Court distorted the evidence. The Court failed to establish the facts in an adequate manner. In disregard of its own right of review, it substituted the Commission's establishment of the facts for its own. In disregard of the right to be heard, it based its reasoning on facts on which the appellant had not presented its comments.

| 6. | Having regard to the assessment of less onerous restrictions, the Court failed to observe the rules on the apportionment of the burden of proof and other principles. |
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6.

Having regard to the assessment of less onerous restrictions, the Court failed to observe the rules on the apportionment of the burden of proof and other principles.

| 7. | Having regard to the alternative of establishing a noise quota scheme, the Court put forward contradictory arguments. |
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7.

Having regard to the alternative of establishing a noise quota scheme, the Court put forward contradictory arguments.

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