Opinion of the Advocate General — ECLI:EU:C:2008:382
Date: 2008-07-03
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Action for annulment;Appeal - unfounded
Origin: Italy

Summary of the Judgment 1. Procedure – Intervention – Extent of intervener’s procedural rights linked to the date on which the application to intervene was made (Rules of Procedure of the Court of First Instance, Arts 64, 115(1) and 116(2), (4) and (6)) 2. Procedure – Measures of inquiry (Rules of Procedure of the Court of First Instance, Art. 66(1)) 3. Competition – Community rules – Undertaking – Meaning – International organisation Eurocontrol (Arts 82 EC and 86 EC) 1. It is apparent from Article 115(1) read in conjunction with Article 116(2), (4) and (6) of the Rules of Procedure of the Court of First Instance that the intervener’s procedural rights differ according to whether the application to intervene is made before the expiry of the period of six weeks commencing with the publication in the Official Journal of the European Union of the notice of initiation of the action or after the expiry of that period but before the decision to open the oral procedure. Where the intervener has made his application before the expiry of that period, he is entitled to participate in both the written and the oral procedure, to receive a copy of the pleadings in the case and to submit a statement in intervention. On the other hand, where the intervener has made an application after the expiry of that period, he is entitled only to participate in the oral procedure, to receive a copy of the Report for the Hearing and to submit his observations on the basis of that report at the hearing. While, in accordance with Article 64 of the Rules of Procedure of the Court of First Instance, that court may, inter alia, by way of measures of organisation of procedure, invite the parties, including the intervener, to make written submissions on certain aspects of the dispute, that provision does not in any way contemplate the possibility that an intervener who has intervened in the proceedings after the aforementioned period should be invited to submit a statement in intervention or that he should be given access to the pleadings in the case, since such measures do not in any event correspond to the purpose of measures of organisation of procedure, as set out in Article 64(2) of those rules. (see paras 32-38) 2. Article 66(1) of the Rules of Procedure of the Court of First Instance requires an order to be made to prescribe the measures of inquiry that the Court of First Instance considers appropriate but not to reject requests seeking an order for such measures, on which that court can therefore, in such a case, give a ruling in the final judgment in the proceedings. (see para. 51) 3. An international organisation such as the European Organisation for the Safety of Air Navigation (Eurocontrol) is not an undertaking for the purposes of Articles 82 EC and 86 EC. Taken as a whole, Eurocontrol’s activities, by their nature, their aim and the rules to which they are subject, are connected with the exercise of powers relating to the control and supervision of airspace, which are typically those of a public authority and are not of an economic nature justifying the application of the Treaty rules on competition. That conclusion also applies, first, with regard to the assistance in the planning, specification and setting up of air traffic systems and services which Eurocontrol provides to the national administrations, when so requested by them, in connection with tendering procedures carried out by those administrations for the acquisition, in particular, of equipment and systems in the field of air traffic management. That activity of providing assistance is one of the instruments of cooperation entrusted to Eurocontrol by the Convention on the Safety of Air Navigation and plays a direct role in the attainment of the objective of technical harmonisation and integration in the field of air traffic with a view to contributing to the maintenance of and improvement in the safety air navigation. Such an activity is not separable from Eurocontrol’s task of airspace management and development of air safety. It is closely linked to the task of technical standardisation entrusted to Eurocontrol by the contracting parties in the context of cooperation among States with a view to maintaining and developing the safety of air navigation and is thus connected with the exercise of public powers. The fact that the assistance provided by Eurocontrol is optional and that, as the case may be, only certain Member States have recourse to it cannot preclude such a connection or alter the nature of the activity. Moreover, in order for there to be a connection with the exercise of public powers, it is not necessary for the activity concerned to be essential or indispensable to ensuring the safety of air navigation, since what matters is that the activity is connected with the maintenance and development of air navigation safety, which constitute public powers. Second, the same therefore also applies to the preparation and production of technical standards, which play a direct role in the attainment of Eurocontrol’s objective, namely to achieve harmonisation and integration with the aim of establishing a uniform European air traffic management system, and form an integral part of the task of technical standardisation entrusted to Eurocontrol by the contracting parties in the context of cooperation among States with a view to maintaining and developing the safety of air navigation, which constitute public powers. Finally, that is also the case with regard to the acquisition of prototypes in the context of technical standardisation and the related management of intellectual property rights since the acquisition does not involve the offer of goods or services on a given market, the fact that standardisation is not an economic activity meaning that those activities are not economic activities either. (see paras 70-72, 76-77, 79, 92, 96, 102, 114)