Opinion of the Advocate General — ECLI:EU:C:2011:94
Date: 2011-02-17
Language of the case: French
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary 66. In view of the reasoning set out above and in relation to the first question, I propose that the Court of Justice should interpret Article 2(e) of Directive 2002/30 as meaning that an operating restriction is a prohibition, absolute or temporary, imposed in advance and on an objective basis, which specifically prevents – and does not merely render difficult or less attractive – the access of a civil subsonic jet aeroplane to a European Union airport. Consequently, rules such as those provided for by the Decree of 27 May 1999 on combating noise pollution generated by air traffic are not ‘operating restrictions’ within the meaning of Article 2(e) of Directive 2002/30. VII – The third question referred for a preliminary ruling 67. Once the possibility that the rules at issue fall within the scope of Directive 2002/30 has been discounted, the Conseil d’État’s next question concerns the compatibility with the directive of national rules on environmental protection which establish limit values for noise levels calculated on the ground instead of at source. In particular, the national court queries whether Article 4(4) of Directive 2002/30, which refers to a criterion for measuring aircraft noise at source contained in the Convention on International Civil Aviation, precludes the requirement for measurement on the ground laid down in the rules of the Brussels-capital region, even if those rules are not regarded as ‘operating restrictions’. 68. With its third question, the national court asks, in essence, whether Directive 2002/30 is an instrument of maximum harmonisation. If that were the case, any national measure which infringed, or made it difficult to apply, Directive 2002/30 would, regardless of whether the national legislation was outside the field of application of the directive, be contrary to it. 69. That question must be answered in the negative. Directive 2002/30 is not an instrument of maximum harmonisation and, in fact, interpreting it in that way would run counter to the objectives which it pursues. That conclusion is apparent from the legal context of Directive 2002/30 and also from the protection which the Member States and the European Union afford to fundamental environmental rights and, more specifically, to the right which safeguards individuals with regard to noise pollution. A – The general legal framework applicable to airport-noise abatement and its impact on the interpretation of Directive 2002/30 70. As has been explained in points 45 to 59 of this Opinion, ‘operating restrictions’ are only one of the measures to be adopted in the context of the ‘balanced approach’. The underlying purpose of that approach requires all the values and interests which converge around airport-noise abatement to be reconciled, without any one prevailing over the others. If Directive 2002/30 were to become an instrument which prevented the adoption of certain planning or environmental measures, the ‘balanced approach’ would have ceased to be balanced, the scales shifting to the side of transport policies. 71. That outcome would be incompatible not only with Directive 2002/30, but also with the principles of the international instruments on which the ‘operating restrictions’ regime draws. ICAO resolution A35‑5, which introduced the ‘balanced approach’ at international level, recognises at Appendix E that ‘States have legal obligations, laws, existing arrangements and established policies which may govern the management of noise problems at their airports and could affect the implementation of this Appendix’. (22) Similarly, Appendix F to the same resolution, relating to land-use planning and management, recognises that ‘while land-use management includes planning activities that may primarily be the responsibility of local authorities, it nevertheless affects airport capacity, which in turn has implications for civil aviation’. (23) 72. Therefore, the ICAO, fully aware that national environmental measures, such as those at issue in these proceedings, may affect air traffic indirectly, does not invite Member States to derogate from such provisions but rather to coordinate their actions within the framework of the so-called ‘balanced approach’. At no time are the States participating in the ICAO called on to limit their measures for the abatement of airport noise to operating restrictions. On the contrary, the ICAO resolutions, conscious of the constitutional values and interests involved, merely invite States to adopt a comprehensive approach which addresses and strikes a balance between all the interests involved. 73. With the aim of addressing the issue of noise in the way outlined above, the European Community, as it then was, enacted Directive 2002/49. It provides that the Member States will use various levels of planning to tackle noise disturbance. Specifically, Directive 2002/49 devotes particular attention to airport planning, which must be dealt with in the context of strategic noise mapping (Article 7), action plans (Article 8) and acoustical planning (Article 3(u)). 74. That legal framework reinforces the approach which has been described above: operating restrictions, as specific prohibitions imposed in the context of transport policy, co-exist with other national environmental measures. International law and Directive 2002/30 are not measures which conflict with one another but instead have distinct fields of application. (24) A case such as the Belgian one, where a regional authority adopts rules entailing the imposition of a penalty in order to protect neighbouring areas from high levels of noise pollution, does not fall within the scope of Directive 2002/30. 75. Irrespective of all the foregoing, account must be taken of the fact that, as the Commission pointed out in its written observations, the measure taken by the Brussels regional authorities, as a unilateral action which was not coordinated with the country’s other authorities, could be questionable from the point of view of Directive 2002/49, which requires a certain level of internal coordination in noise-pollution management. (25) As the Commission observes, the current situation at Brussels-National Airport, far from being ideal, reflects a lack of cooperation between the authorities, which could result in an infringement of Directive 2002/49 – but that would not be the case with Directive 2002/30, whose scope does not cover the regional measures at issue in these proceedings. 76. In conclusion, I take the view that both the international framework and Directive 2002/49 confirm the sectoral nature of Directive 2002/30, which must remain restricted exclusively to the adoption and regulation of, and exemptions from, ‘operating restrictions’ in the way described in points 45 to 59 of this Opinion. If Directive 2002/30 were interpreted as an instrument of maximum harmonisation, that would produce a result incompatible with the ‘balanced approach’ advocated by the relevant international rules and with Directive 2002/49, which seeks to take an integrated approach to the issue of noise, including airport noise. B – Protection from noise pollution as a fundamental right and its impact on European Union legislation concerning airport noise 77. The answer which I propose for the third question finds further support if it is analysed from a more general perspective. As is well known, protection from the harmful effects of noise pollution is found in European Union law and in national legal orders through fundamental rights. That protection is therefore constitutional in nature and it is by no means irrelevant to the question which has arisen before the Conseil d’État. 78. The Charter of Fundamental Rights of the European Union includes in Article 7 the fundamental right to private and family life and home, whilst Article 37 expressly recognises the right to environmental protection. The latter right is expressed as a principle and, moreover, does not arise in a vacuum but instead responds to a recent process of constitutional recognition in respect of protection of the environment, in which the constitutional traditions of the Member States have played a part. (26) That is borne out by the explanatory notes to the Charter, which state that Article 37 ‘also draws on the provisions of some national constitutions’. 79. It should be noted that Article 52(3) of the Charter specifies that, in so far as the Charter contains rights which correspond to rights guaranteed by the European Convention on Human Rights (‘the Convention’), the meaning and scope of those rights are to be the same as those laid down by the Convention. According to the explanation of that provision, the meaning and scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case-law of the ECHR. Article 52(3), second sentence, of the Charter provides that the first sentence of paragraph 3 is not to prevent European Union law providing more extensive protection. (27)A contrario that prevents the European Union adopting measures affording less extensive protection. 80. The protection of the environment is an objective which the ECHR has integrated in its interpretation of Article 8 of the Convention, introducing it through the fundamental right to private and family life and home. (28) Specifically, the case-law of the ECHR has on a number of occasions held that noise pollution forms part of the environment for the purposes of Article 8 of the Convention. (29) The ECHR addressed the specific question of airport noise in its judgment in Hatton v United Kingdom, (30) acknowledging that aircraft noise gives States grounds for taking active protective measures and, at times requires them to do so. (31) In accordance with Article 53 of the Charter, that interpretation binds the European Union and must be taken into account by the Court of Justice. 81. That is the context in which it must be determined whether the harmonisation effected by Directive 2002/30 is to be regarded as maximum harmonisation. In view of the provision made by Articles 7 and 37 of the Charter, interpreted in the light of the case-law of the ECHR cited above, it may not readily be concluded that Directive 2002/30 brings about maximum harmonisation. Indeed, harmonisation of that kind would make it impossible to adopt measures for airport-noise abatement other than those expressly provided for in the directive. That would give rise to a kind of paralysis of State action against noise pollution, depriving States of any latitude in the exercise of their environmental, planning and health policies. Apart from any other considerations, such an effect would oblige individuals to bring proceedings against their States on the basis of Article 8 of the Convention, as interpreted by the ECHR – and in many cases those individuals could well be successful. (32) 82. As a consequence, and in view of the background of fundamental rights against which this case is set, I propose that the Court of Justice reject an interpretation whereby Directive 2002/30 is construed as effecting maximum harmonisation, with the consequences indicated above. Thus, Directive 2002/30 does not, in my view, prevent the Member States from adopting environmental legislation which indirectly affects the civil aviation provisions harmonised by the directive. In conclusion, national environmental legislation such as that at issue in the present case – although it requires civil subsonic aircraft noise to be measured on the ground – is not incompatible with Article 4(4) of Directive 2002/30, since it does not constitute an ‘operating restriction’. VIII – Conclusion 83. In the light of the above analysis I propose that the Court reply to the Conseil d’État as follows: 1. An ‘operating restriction’ is a prohibition, absolute or temporary, imposed in advance and on an objective basis, which specifically prevents – and does not merely render difficult or less attractive – the access of a civil subsonic jet aeroplane to a European Union airport. Consequently, Article 2(e) of Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports must be interpreted as meaning that rules such as those provided for by the Decree of 27 May 1999 on combating noise pollution generated by air traffic are not ‘operating restrictions’ within the meaning of that provision. 2. On a proper construction, Article 4(4) of Directive 2002/30 does not preclude a national measure such as the Decree of 27 May 1999, which requires noise to be measured on the ground. 1 – Original language: Spanish. 2 – Directive of the European Parliament and of the Council of 26 March 2002 (OJ 2002 L 85, p. 40). 3 – Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40). 4 – Council Regulation of 23 July 1992 on access for Community air carriers to intra-Community air routes (OJ 1992 L 240, p. 8). 5 – Directive of the European Parliament and of the Council of 25 June 2002. 6 – Proposal for a Directive on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (COM [2001] 695 final) of 28 November 2001. 7 – Resolution of the ICAO Assembly: A35‑5, Appendix C (document 9902). 8 – Cited in footnote 5. 9 – Cited in footnote 6. 10 – Commission proposal, cited above, p. 3. 11 – Article 2(e) of the proposal for a Directive. 12 – See Amendment 9 from the Committee on Regional Policy, Transport and Tourism in its Report on the Proposal for a European Parliament and Council directive on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (A5-0053/2002), of 25 February 2002, pp. 10‑31. 13 – Ibid, pp. 22‑31. 14 – Ibid. 15 – Speech by Mr Lannoye at the plenary session on 12 March 2002. 16 – Ibid. 17 – Specifically, the impending prohibition on ‘hushkit’ aircraft (aircraft equipped with noise reduction devices but with noise levels considered unsatisfactory). That restriction was affecting commercial relations between the European Union and the United States and, as can be seen from the parliamentary debates, Directive 2002/30 played a role in solving the dispute. 18 – Point 1 of Appendix E urges States to ensure, whenever possible, that any operating restrictions be adopted only where such action is supported by a prior assessment of costs and benefits, whilst point 3(c) recommends adopting restrictions of a partial nature rather than an outright ban. 19 – The Report on the application of Directive 2002/30 drawn up by the Commission confirms that any operating restriction is to be used exceptionally and as a last resort. For example, when it reports the view of the aircraft operating industry, the report states that the latter ‘considers the Directive as protection against the use of operating restrictions as a first resort, and as a guarantee of a reasonable timescale for their introduction of restrictions and of proper assessment of the costs and benefits of such restrictions’ (Report from the Commission to the Council and the European Parliament on the application of Directive 2002/30/EC, COM(2008) 66 final, p. 8). 20 – See the Report on the application of Directive 2002/30, cited above, which repeatedly refers to the ‘right of individual airports to restrict … aircraft operations within the balanced approach framework’ (Report on application, p. 3). 21 – Article 2 of the Decree of 27 May 1999 on combating noise pollution generated by air traffic. 22 – Thirteenth recital to Appendix E, restated in 2007 by the ICAO Assembly in Resolution 35-22. 23 – Seventh recital to Appendix F. 24 – Although Directive 2002/49 does not refer to Directive 2002/30, the latter does refer to the former. As the Commission’s agent confirmed at the hearing, both directives have distinct fields of application and pursue common objectives but do so by means of different measures. 25 – Concerning Directive 2002/49, see the analysis of Moral Soriano, L., ‘La directiva de ruido ambiental: el nuevo marco para la actuación comunitaria’, in Arana García, E. and Torres López, A., Régimen jurídico del ruido. Una perspectiva integral y comparada, Comares, Granada, 2004. 26 – See, for example, Article 20.a of the German Basic Law, Article 24.1 of the Greek Constitution, Article 5 of the Polish Constitution, Article 66 of the Portuguese Constitution, Article 45 of the Spanish Constitution or Article 35 of the Charter of Rights of the Czech Republic. 27 – See, to that effect, Case C‑400/10 PPU McB. [2010] ECR I-0000, paragraph 53, and Case C‑279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH [2010] ECR I-0000, paragraph 35. 28 – See, inter alia, López Ostra v Spain, judgment of 9 December 1994, Series A n. 303-C and Tătar v Romania, judgment of 27 January 2009, not yet published. 29 – See Hatton v United Kingdom ECHR 2003-VIII and Moreno Gómez v Spain ECHR 2004-X. 30 – Hatton v United Kingdom, cited in footnote 29. 31 – See Frohwein, J./Peukert, W, EMRK-Kommentar, 2009 (3ª ed.), Article 8, paragraph 43 et seq.; Lozano Cutanda, B., ‘La ecologización de los derechos fundamentales: la doctrina López Ostra c. España, Guerra y otros c. Italia y Hatton y otros c. Reino Unido del TEDH’, Revista Española de Derecho Europeo, No 1, 2002 and Eleftheriadis, P., ‘The Future of Environmental Rights in the European Union’, in Alston, P., The EU and Human Rights, Oxford University Press, Oxford, 1999. 32 – On the other hand, if the Court of Justice declares that the regional measures in question do constitute an ‘operating restriction’, it will be seen that they are incompatible with Directive 2002/30, since the former use a criterion for aircraft- noise measurement which is prohibited by the latter. In that case, the result would apply not only to the Brussels-Capital rules at issue here but also to any national environmental legislation intended to regulate environmental noise which has, directly or indirectly, an impact on air traffic. Such an interpretation would also end by calling into question the validity of Directive 2002/30 as a result of its incompatibility with Articles 7 and 37 of the Charter.