Judgment — ECLI:EU:T:2010:367
Date: 2010-09-09
Language of the case: German
Court formation: Fifth Chamber
Subject matter: General provisions;External relations;Transport;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Action for annulment - unfounded

Summary of the Judgment 1. Transport – Air transport – Access of Community carriers to intra-Community routes – Measures taken by a Member State to limit or refuse the exercise of traffic rights (Council Regulation No 2408/92, Arts 8(2) and (3) and 9(1) to (4)) 2. Transport – Air transport – Access of Community carriers to intra-Community routes – Operating rules for the exercise of traffic rights (EC‑Switzerland Agreement on Air Transport, Art. 2; Council Regulation No 2408/92, Art. 8(2) and (3)) 3. European Union law – Principles – Equal treatment – Discrimination on grounds of nationality – Prohibition – Application in the context of the EC‑Switzerland Agreement on Air Transport (Art. 12 EC; EC‑Switzerland Agreement on Air Transport, Art. 1(2) and (3)); Council Regulation No 2408/92) 1. Article 9 of Regulation No 2408/92 on access for Community air carriers to intra-Community air routes constitutes a lex specialis vis-à-vis Article 8 of that regulation in the sense that Article 9 covers only part of the measures covered by Article 8 and makes application of the measures concerned subject to additional conditions, not laid down in Article 8. The measures covered by Article 9 of Regulation No 2408/92 contain, essentially, a prohibition of the exercise of traffic rights which is at least conditional or partial. The measures covered by Article 9(1) of Regulation No 2408/92 may be applied by a Member State only if the conditions laid down in paragraphs 1 and 2 of that article are met and if, in addition, the Member State in question fulfils its obligation, laid down in Article 9(3), to inform the other Member States and the Commission, at least three months before the application of the measures, of the need to apply those measures. It is only in the case where the Member State which intends to apply the measures at issue provides such information to the other Member States and the Commission that Article 9(4) becomes applicable. In the absence of such information, the measures in question cannot be applied by the State concerned even if the conditions governing their adoption laid down in Article 9(1) and (2) are met. If the Member State concerned none the less applies such measures, the Commission is entitled to examine them, not under Article 9(4) of Regulation No 2408/92, the conditions for the application of which are not met, but under Article 8(3) of that regulation. Where a Member State applies measures covered by Article 9(1) of Regulation No 2408/92 without following the procedure laid down in Article 9(3) thereof, examination of those measures under Article 8(3) can lead only to the conclusion that the Member State concerned cannot continue to apply them. Consequently, if a State insists on compliance with its published national, regional or local operational rules, in particular those relating to protection of the environment, in order to authorise the exercise of traffic rights within the meaning of Regulation No 2408/92, that does not amount to the imposition of a condition, within the terms of Article 9(1) of that regulation, governing the exercise of those rights. If that were the case, Article 8(2) of that regulation would be rendered completely meaningless. The conditions referred to in Article 9(1) of Regulation No 2408/92 are, rather, those which make the exercise of traffic rights dependent on circumstances other than mere compliance with published national, regional or local operational rules. (see paras 75-81, 89) 2. The legislature, on the one hand, provided, in Article 8(2) of Regulation No 2408/92 on access for Community air carriers to intra-Community air routes, that the exercise of traffic rights was subject to Community, national, regional or local operational rules relating to safety, the protection of the environment and the allocation of slots and, on the other hand, authorised the Commission to examine, under Article 8(3) of that regulation, the application of, inter alia, paragraph 2 thereof and to decide whether the Member State concerned could continue to apply the measure under consideration. The examination of a measure under Article 8(3) of Regulation No 2408/92 therefore deals with its implications for the exercise of traffic rights on routes within the Community. By contrast, any rights which airport operators or persons living near airports may have cannot be taken into account in such an examination. According to Article 2 of the Agreement between the European Community and the Swiss Confederation on Air Transport, approved on behalf of the Community by Decision 2002/309, the provisions, inter alia, of the annex to that agreement apply to the extent that they concern air transport or matters directly related to air transport. The only extension of the scope of Regulation No 2408/92 in the context of the Agreement is that resulting from the assimilation, pursuant to the annex to the Agreement, of the Swiss Confederation and air carriers having their principal centre of activities in Switzerland to the Member States of the Community and Community air carriers respectively. Subject to that extension of its scope, Regulation No 2408/92 does not apply, in the context of the Agreement, to situations to which it would not apply in a Community context. It follows that, even though the rights of airport operators or persons living near airports constitute purposes directly related to air transport, neither Article 2 nor any other provision of the Agreement permits the Commission to take account of such rights when applying Article 8(3) of Regulation No 2408/92 in the context of the Agreement. (see paras 121-122, 125, 127-129) 3. According to settled case-law concerning the principle of prohibition of all discrimination on grounds of nationality within the scope of application of Community law, the rules relating to equality of treatment between nationals and non-nationals forbid not only overt discrimination on grounds of nationality or, in the case of a company, its headquarters, but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead, in fact, to the same result. In the light of Article 1(2) of the Agreement between the European Community and the Swiss Confederation on Air Transport, that case-law is also relevant to the application of Regulation No 2408/92 on access for Community air carriers to intra-Community air routes in the context of the Agreement, since Article 3 of that Agreement is essentially identical to the first paragraph of Article 12 EC. Thus, the finding that a measure taken by a Member State, within the context of Regulation No 2408/92, with a view to reducing noise pollution in, inter alia, a tourist area of its territory, affects in particular a single airport in the Swiss State situated nearby and leads to the same result as discrimination on grounds of nationality does not suffice for a conclusion that it is incompatible with Article 12 EC or, in the present case, with Article 3 of the Agreement. It is further necessary to ascertain whether that measure is justified by objective considerations and whether it is proportionate to the objective being pursued. It is only if that is not the case that the measure at issue will have to be regarded as being prohibited by Article 12 EC or, in the present case, by Article 3 of the Agreement. (see paras 140-141, 145, 150)