Opinion of the Advocate General — ECLI:EU:C:2025:664
Date: 2025-09-04
Language of the case: German

Summary C-408/24 – 1 
Case C-408/24 
Request for a preliminary ruling 
Date lodged: 
12 June 2024 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
27 May 2024 
Applicant: 
Austrian Airlines AG 
Defendant: 
Republic of Austria 
      
In the case between the applicant Austrian Airlines AG, [...] Vienna, and the 
defendant, the Republic of Austria (Federation) [...] for EUR 373 170.46 [...] in 
respect of the appeal brought by the defendant against the order of the Supreme 
Court Vienna, as the court of appeal, of 18 April 2023, GZ 14 R 187/22f-64, 
which set aside the judgment of the Landesgericht für Zivilrechtssachen Wien 
(Regional Court for Civil Matters, Vienna) of 30 August 2022, GZ 31 Cg 18/19y-
60), the Supreme Court 
orders 
as follows: 
I. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
Is Article 8 of Regulation (EC) No 550/2004 of the European Parliament and of 
the Council of 10 March 2004 on the provision of air navigation services in the 
single European sky (‘the service provision Regulation’), as amended by 
Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 
21 October 2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004, 
(EC) No 551/2004 and (EC) No 552/2004 in order to improve the performance 
EN 
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and sustainability of the European aviation system (‘Regulation (EC) No 
1070/2009’), read in conjunction with Article 2(4) of Regulation (EC) 
No 549/2004 of the European Parliament and of the Council of 10 March 2004 
laying down the framework for the creation of the single European sky (‘the 
framework Regulation’), as amended by Regulation (EC) No 1070/2009, to be 
interpreted as meaning that the provision of air navigation services is also 
intended to protect every user of air space against purely financial damage 
resulting from unlawful and culpable negligence on the part of the air navigation 
service provider responsible for air navigation services? 
II. The proceedings before the Supreme Court are [...] stayed. 
G r o u n d s: 
I. Facts 
1 Austro Control Österreichische Gesellschaft für Zivilluftfahrt mit beschränkter 
Haftung (‘Austro Control’) is a company established on the basis of the 
Bundesgesetz über die Austro Control Gesellschaft mit beschränkter Haftung 
(Federal Law on the Austro Control GmbH, ‘the ACG-Gesetz’), the sole 
shareholder of which is the Republic of Austria (Federation) against which a suit 
has been filed in this case. It must carry out all the tasks previously entrusted to 
the Bundesamt für Zivilluftfahrt (Federal Civil Aviation Office), in particular the 
public authority task of air navigation safety. In accordance with Article 10(1) of 
the ACG-Gesetz, the Republic of Austria (Federation) is liable, in accordance 
with the provisions of the Amtshaftungsgesetz (Law on Liability of Public 
Authorities, ‘the AHG’), for damage caused by the employees of Austro Control 
in the performance of the tasks entrusted to it in performance of the laws [...]. 
2 The applicant is an airline with its base airport in Vienna-Schwechat. For flights to 
and from Vienna, it uses Austro Control’s air traffic services and is required to 
pay charges for them. 
3 On 28 August 2016, due to technical problems in the sphere of Austro Control, 
there were delays in handling incoming and outgoing flights, and thus a passenger 
backlog. The applicant was also affected. 
II. Forms of order sought and arguments of the parties: 
4 The applicant claims damages of EUR 373 170.46 from the Republic of Austria 
(Federation). 
5 Within the context of air navigation, Austro Control operates the Aeronautical 
Fixed Telecommunication Network (AFTN) server, which, as part of AFTN’s 
decentralised international network, is of essential importance for the transmission 
of flight information between the various airlines, Austro Control and the 
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European Coordination Service in Brussels (Eurocontrol). Austro Control is 
required to provide and reliably maintain the air navigation facilities necessary for 
the proper and safe performance of the air navigation tasks entrusted to it and in 
accordance with international standards. As Austro Control failed to put in place 
adequate and reasonable technical and personnel measures, the AFTN server, on 
28 August 2016, experienced a major collapse, resulting in a drastic reduction in 
the arrival and departure rates at Vienna-Schwechat airport. That obliged the 
applicant to annul a total of 60 flights. This resulted in financial damage totalling 
EUR 373 170.46 (already taking savings into account) resulting, inter alia, from 
the reimbursement of tickets, transfers of bookings to other airlines, the loss of 
receivables for codeshare flights, the provision of food and accommodation and 
the transport of passengers, the sending on of baggage and the overtime worked 
by employees. National and European standards on air navigation (also) protect 
the (purely) financial interests of airspace users who have to use the services of 
the air navigation service provider and who have to pay charges for them. 
6 The Republic of Austria (Federation), the defendant, rejects liability. For the 
reasons set out in more detail, it argues that the executives and employees of 
Austro Control did not act unlawfully and culpably. Moreover, no protection of 
the (purely) economic interests of airlines can be inferred from the legal 
provisions relating to air navigation. It maintained that the European regulations 
are purely administrative and do not contain any liability regime; they serve 
exclusively the general public interest in safe air traffic. 
III. Earlier proceedings 
7 The court of first instance dismissed the application without taking evidence on 
the basis of purely legal considerations. 
8 National and European air navigation provisions serve to ensure the safe, orderly 
and smooth management of air traffic and aim to enhance the overall efficiency of 
air traffic management and air navigation services for general air traffic in Europe, 
in order to meet the needs of all airspace users. It is true that guaranteeing safe air 
traffic and operating it as smoothly as possible also benefit the various air carriers, 
so that the rules aimed at achieving that are to be regarded as protective laws. 
However, the provisions at issue serve only to regulate (existing) air traffic and 
not to protect the airlines’ assets. Therefore, the objective of protection does not 
cover the damage caused to such an undertaking as a result of the fact that certain 
flights cannot be operated or can be operated only at a different time. For that 
reason alone, the question of the defendant’s liability is to answered in the 
negative, irrespective of whether Austro Control employees acted unlawfully and 
culpably. 
9 The appeal court set aside the judgment of the first-instance court and referred 
the case back to that court. 
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10 It concluded, in summary, that the provision of air navigation is carried out not 
only in the public interest but also in the interest of air carriers. It is true that the 
rules relating to air navigation primarily serve air safety. In accordance with the 
objectives of the EU regulations, navigation does not merely benefit the general 
public or the public interest, however: air carriers, as airspace users operating in 
the area of local air safety, are dependent on cooperation with the air navigation 
service provider and have to pay charges for the latter’s activity. There is thus a 
special relationship, so that the purely economic interests of those undertakings 
are also covered by the protection of norms governing air safety standards. It is 
therefore necessary to adduce evidence as to whether Austro Control’s employees 
were at fault as regards delays in processing flights. 
11 An appeal is brought before the Oberster Gerichtshof (Supreme Court) by the 
defendant Republic of Austria (Federation), seeking the reinstatement of the 
dismissal decision of the first-instance court. It continues to rely on the fact that 
the purely financial interests of air carriers do not fall within the scope of the 
protection of air safety provisions. 
IV. Legal basis 
1. EU law: 
12 1.1. Regulation (EC) No 549/2004 of the European Parliament and of the Council 
of 10 March 2004 laying down the framework for the creation of the single 
European sky (framework Regulation), as amended by Regulation (EC) 
No 1070/2009, contains the following recital and provisions: 
Recital 3: 
Smooth operation of the air transport system requires a consistent, high level 
of safety in air navigation services allowing optimum use of Europe's 
airspace and a consistent, high level of safety in air travel, in keeping with 
the duty of general interest of air navigation services, including public 
service obligations. It should therefore be carried out to the highest standards 
of responsibility and competence. 
Article 1 
Objective and scope 
1.  The objective of the single European sky initiative is to enhance current air 
traffic safety standards, to contribute to the sustainable development of the 
air transport system and to improve the overall performance of air traffic 
management (ATM) and air navigation services (ANS) for general air 
traffic in Europe, with a view to meeting the requirements of all airspace 
users. [...] 
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Article 2 
Definitions 
For the purpose of this Regulation and of the measures referred to in 
Article 3, the following definitions shall apply: […] 
(4) ‘air navigation services’ means air traffic services; communication, 
navigation and surveillance services; meteorological services for air 
navigation; and aeronautical information services; 
(5) ‘air navigation service providers’ means any public or private entity 
providing air navigation services for general air traffic; […] 
(8) ‘airspace users’ means operators of aircraft operated as general air 
traffic; […] 
(11) ‘air traffic services’ means the various flight information services, 
alerting services, air traffic advisory services and ATC services (area, 
approach and aerodrome control services). 
13 1.2. Regulation (EC) No 550/2004 of the European Parliament and of the Council 
of 10 March 2004 on the provision of air navigation services in the single 
European sky (the service provision Regulation), as amended by Regulation 
(EC) No 1070/2009 of the European Parliament and of the Council of 21 October 
2009, contains the following recitals and provisions: 
Recitals 3 to 5, 10, 13 and 22: 
(3) Regulation […] No 549/2004 […] lays down the framework for the 
creation of the single European sky. 
(4) In order to create the single European sky, measures should be adopted 
to ensure the safe and efficient provision of air navigation services 
consistent with the organisation and use of airspace as provided for in 
Regulation (EC) No 551/2004 of the European Parliament and of the 
Council of 10 March 2004 on the organisation and use of the airspace in the 
single European sky (the airspace Regulation) [OJ 2004 L 96, p. 20.)] [...] 
(5) The provision of air traffic services, as envisaged by this Regulation, is 
connected with the exercise of the powers of a public authority [...]. 
[...] 
(10) Whilst guaranteeing the continuity of service provision, a common 
system should be established for certifying air navigation service providers, 
which constitutes a means for defining the rights and obligations of those 
providers and for regular monitoring of compliance with such requirements. 
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[...] 
(13) The provision of communication, navigation and surveillance  
services, as well as aeronautical information services, should be  organised 
under market conditions whilst taking into account the  special features of 
such services and maintaining a high level of  safety. […] 
(22) Air navigation service providers offer certain facilities and  services 
directly related to the operation of aircraft, the costs of  which they should 
be able to recover according to the ‘user pays’  principle, which is to say that 
airspace users should pay for the  costs they generate at, or as close as 
possible to, the point of use. 
Article 1 
Scope and objective 
[...] 
(2) This Regulation shall apply to the provision of air navigation services 
for general air traffic in accordance with and within the scope of the 
framework Regulation. 
Article 8 
Designation of air traffic service providers 
(1) Member States shall ensure the provision of air traffic services on an 
exclusive basis within specific airspace blocks in respect of the airspace 
under their responsibility. For this purpose, Member States shall designate 
an air traffic service provider holding a valid certificate in the Community. 
(2) Member States shall define the rights and obligations to be met by the 
designated service providers. The obligations may include conditions for the 
timely supply of relevant information enabling all aircraft movements in the 
airspace under their responsibility to be identified. 
Article 15 
Principles [of the charging scheme] 
(1) The charging scheme shall be based on the account of costs for air 
navigation services incurred by service providers for the benefit of airspace 
users.  The scheme shall allocate these costs among categories of users. [...] 
2. National law 
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14 2.1. Part 8 of the Luftfahrtgesetz (Austrian Law on Aviation, ‘the LFG’), (Air 
traffic control, operation of civilian aircraft and special safety measures) contains, 
inter alia, the following provision on air traffic control: 
Paragraph 120 Performance of air navigation 
(1) Unless otherwise provided for in or by international conventions, 
provisions of EU law or this Federal Law, the performance of air navigation, 
as a public authority task of the Federation, shall be the responsibility of 
Austro Control GmbH. Austro Control GmbH is, for the purposes of the 
performance of air navigation services within the meaning of 
Paragraph 119(2)(1)(a) and aviation weather services within the meaning of 
Paragraph 119(2)(1)(c), appointed on an exclusive basis within the meaning 
of Articles 8 and 9 of Regulation (EC) No 550/2004 on the provision of air 
navigation services in the single European sky (‘the service provision 
Regulation’), OJ L 96 of 31.3.2004, p. 10. [...] 
(5) Air navigation service providers are required to have the air navigation 
facilities necessary for the proper and safe performance of the air navigation 
tasks assigned to them and in line with international standards, to maintain 
them in operational condition and to operate them properly. 
Paragraph 122 Air navigation facilities 
(5) Implementing Regulation (EU) 2019/317 laying down a performance 
and charging scheme in the single European sky, OJ L 56, 25.2.2019, p. 1 is 
applicable for the purposes of calculating and setting the charges for the use 
of services and facilities of designated air navigation service providers for 
the performance of air navigation services in accordance with Article 120 
(1) and (2),. The amount of the tariffs is to be published online by the 
Bundesminister für Klimaschutz, Umwelt, Energie, Mobilität, Innovation 
und Technologie (Federal Minister for Climate Action, Environment, 
Energy, Mobility, Innovation and Technology) at the latest two weeks 
before their respective validity on the homepage of the Bundesministerium 
für Klimaschutz, Umwelt, Energie, Mobilität, Innovation und Technologie 
(Federal Ministry for Climate Action, Environment, Energy, Mobility, 
Innovation and Technology). The arrangements for imposing and collecting 
fees is to be laid down by statutory instrument by the Bundesministerium für 
Verkehr, Innovation und Technologie (Federal Minister for Transport, 
Innovation and Technology), in agreement with the Bundesministerium für 
Finanzen (Federal Minister for Finance). Duties must be recovered by civil 
means. Statutory default interest is to be prescribed. 
15 2.2. The Bundesgesetz über die Austro Control Gesellschaft mit beschränkter 
Haftung (Federal Law on Austro Control GmbH, ‘the ACG-Gesetz’) contains, 
inter alia, the following provisions: 
Paragraph 1 
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(1) The Bundesminister für öffentliche Wirtschaft und Verkehr (Federal 
Minister for the Public Economy and Transport) is authorised, in agreement 
with the Federal Minister for Finance, to set up in place of the Federal Civil 
Aviation Office a limited liability company whose share capital is at least 1 
million Schilling. […] 
(2) That company is an air carrier and manages ‘Austro Control 
Österreichische Gesellschaft für Zivilluftfahrt mit beschränkter Haftung’ 
(Austro Control GmbH). 100% of its capital is to be reserved for the 
Federation. […] 
Paragraph 2 Tasks, powers 
(1) Austro Control GmbH is to perform all the tasks previously assigned 
to the Federal Civil Aviation Office under the LFG, Federal Law Gazette No 
253/1957, and in the statutory instruments adopted under that law and in the 
Flugsicherungsstreckengebührengesetz (Law on Air Navigation Route 
Charges), Federal Law Gazette No. 137/1986, with the exception of those 
delegated by statutory instrument under Paragraph 140b LFG. Austro 
Control GmbH is also required to perform the tasks entrusted to it by federal 
laws or by statutory instruments adopted on the basis of those federal laws. 
These tasks are subject to an operating obligation. Austro Control GmbH 
shall make all organisational arrangements in order to be able to perform 
these tasks under the control of the public authorities. 
Paragraph 10 Liability 
(1) The Federation is liable for the damage which the employees of Austro 
Control GmbH, in the performance of their duties under Article 2(1) and (3) 
of this Federal Law, have caused to any person in execution of the laws, in 
accordance with the provisions of the Amtshaftungsgesetz (Law on Liability 
of Public Authorities, ‘the AHG’), Federal Law Gazette No 20/1949. The 
employee is not liable to the injured party. […] 
2.3. Legislation on liability of public authorities 
16 (a) Paragraph 1(1) of the AHG, applicable to the defendant Republic of 
Austria (Federation) under Paragraph 10(1) of the ACG-Gesetz provides: 
The Federation, the Länder, the municipalities, other bodies governed by 
public law and social security institutions - ‘legal entities’ - are liable in 
accordance with the provisions of civil law for damage to assets or persons 
which, in implementation of laws, have been culpably caused by unlawful 
conduct on the part of persons acting as their organs; the organ is not liable 
to the injured party. The damage must be the subject only of pecuniary 
compensation. 
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17 (b) According to the case-law of the Supreme Court (RS0050038; most 
recently, for example 1 Ob 146/23m), even in the case of a culpable breach of 
legal provisions, only the damage which the infringed rule was intended to 
prevent or, at the very least, the purpose of which is to prevent the occurrence, is 
to be made good. Only in that case is there the link of unlawfulness between the 
damage and the transgressed standard, which is necessary in order to establish 
liability. It is therefore the protective purpose of the standard that must be 
determined by its interpretation (RS0050038 [T14], most recently, for example, 
1 Ob 199/22d [paragraph 22]). 
(c) When interpreting national provisions, the Oberster Gerichtshof generally 
accepts that the rule also pursues individual interests where there was a particular 
legal relationship between the injured party and the body whose organs allegedly 
failed to fulfil a service obligation (RS0049993; most recently, for example, 1 Ob 
199/22d [paragraph 52]). On the other hand, the question of the existence of an 
objective which also protects individual interests normally has to be answered in 
the negative where the performance of public service tasks affects such a wide and 
indeterminate number of persons that they must be treated in the same way as the 
general public (RS0049993, most recently 1 Ob 199/22d [paragraph 50]). In that 
case, it is held that the possible impact of the rule on individuals is merely a 
reflection of its objective of protecting the general public, so that liability must be 
excluded even in the event of unlawful and culpable acts (RS0050038 [T5], most 
recently, for example, 1 Ob 199/22d [paragraph 51]). 
V. The question referred 
18 First, the applicant relies on claims of public authority liability on the ground that 
the executives of Austro Control culpably failed to keep the information server 
(AFTN) necessary to operate the air navigation services in an operational state. 
The breakdown of that server and the resulting reduction in air movements caused 
it purely financial damage (loss of earnings). It is common ground that the 
Republic of Austria is to be held responsible for unlawful and culpable conduct on 
the part of executives or other employees of Austro Control (Paragraph 10(1) 
ACG-Gesetz, read in conjunction with Paragraph 1(1) AHG). On the other hand, 
the parties disagree as to whether the rules underlying air navigation (also) seek to 
protect individual airspace users against purely pecuniary damage or whether the 
sole objective of that legislation is air traffic safety and the prevention of risks to 
the general public which that may entail. 
19 Second, under Paragraph 120(1) of the LFG, Austro Control is designated, inter 
alia, to carry out air navigation services ‘on an exclusive basis within the meaning 
of Article 8 […] of Regulation (EC) No 550/2004’. The purpose of that regulation 
is therefore decisive, which must be determined by its interpretation. That 
interpretation must be given independently of EU law, while taking into account 
the connection with the other provisions of EU air transport legislation. For that 
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reason, the principles of interpretation developed by the Oberster Gerichtshof for 
national rules (see IV.2.3.) cannot be applied directly. 
20 Third, in Case C-353/20, Skeyes, the Court of Justice of the European Union 
ruled on the purpose of Regulation (EC) No 550/2004. 
21 The dispute in the main proceedings in that decision concerned the imposition, 
upon application by an air carrier, of a penalty payment on an air traffic service 
provider which had blocked the airspace for which it was responsible on account 
of a strike by air traffic controllers. It was a question of ascertaining whether there 
was an obligation under EU law to grant an air carrier, in such a case, an effective 
remedy against the service provider. That was disputed by the service provider 
because the air carrier did not have a ‘subjective right’ in that regard. 
22 The Court of Justice rejected that view and accepted the obligation of Member 
States to provide airspace users with an effective remedy in case of breach of the 
service provider’s obligations (emphasis below added by this Chamber): airspace 
users, such as airlines, enjoy certain rights that may be affected by airspace 
closure (paragraph 39). In particular, it is those users who must, under Article 15, 
read in the light of recital 22, bear the costs for air navigation services provided 
for their benefit or directly related to the operation of aircraft (paragraph 42). 
Accordingly, it is apparent from the context of the rules on air traffic safety that 
the obligations of the air traffic services provider are all services likely to be 
necessary for the economic activity of airspace users (paragraph 43). The 
obligations arising from Article 8 of Regulation (EC) No 50/2004, read in 
conjunction with Article 2(4) of Regulation (EC) No 549/2004, could therefore 
confer on airspace users rights which may be affected by the closure of airspace 
(paragraph 45). That is why, in the light of the first paragraph of Article 47 of the 
Charter of Fundamental Rights, they should have the right to an effective remedy 
before a national court in the event that the service provider fails to fulfil its 
obligations. 
23 Fourth, that decision is based on the fact that, in any event, the objective of the 
air safety rules is not limited to ensuring air safety in the strict sense. If that were 
the case, airspace closure – which guarantees the highest level of safety since it 
prevents any accident – could never infringe airspace users’ rights. 
24 Rather, air navigation safety also serves the efficient use of airspace. This is 
already apparent from the objective of the creation of the single European sky 
specified in Regulation (EC) No 549/2004: recital 3 refers to the ‘optimum use of 
Europe’s airspace’ and, according to Article 1(1), the provision is intended to 
‘enhance current safety standards and overall efficiency for general air traffic in 
Europe, [...] optimise capacity meeting the requirements of all airspace users and 
[...] minimise delays.’ On this basis, recital 4 of Regulation (EC) No 550/2004 
considers that a harmonised organisation for the provision of air navigation 
services is important in order ‘to respond adequately to the demand of airspace 
users and to regulate air traffic safely and efficiently’, and Article 1(1) of that 
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Regulation states that its objective is to ‘establish common requirements for the 
safe and efficient provision of air navigation services in the Community’. 
25 Air traffic efficiency is therefore undoubtedly as much a regulatory purpose of 
Regulation (EC) No 550/2004 as its safety. Secondly, it is apparent from Decision 
C-353/20, Skeyes, that the efficient provision of air navigation services also serves 
the specific economic interests of the various air carriers. Limiting the purpose of 
the legislation to a ‘general interest’ in efficient air traffic is not compatible with 
that. 
26 Fifth, it follows from the considerations of the Court of Justice of the European 
Union in Case C-353/20, Skeyes, that Article 8 of Regulation (EC) No 550/2004 – 
read in conjunction with Article 2(4) of Regulation (EC) No 549/2004 – confers 
on the airspace user rights which may be adversely affected by the decision of a 
provider of air traffic services. The Oberster Gerichtshof thus raises the question 
as to whether the purely financial interests of the airspace user could also be 
covered by Article 8 of Regulation (EC) No 550/2004, read in conjunction with 
Article 2(4) of Regulation (EC) No 549/2004, in respect of which, 
- provided that unlawful and culpable conduct on the part of the organs 
attributable to the defendant entity has taken place, 
- the defendant entity would be liable under the national law on liability of 
public authorities. In that regard, account must be taken of the fact that the 
applicant, as an air space user, depends on the services of Austro Control GmbH 
as an air navigation service provider and must, on that basis, pay a charge which 
must be paid when using air navigation services and facilities when taking off 
from and landing at airports. According to the Oberster Gerichtshof, that militates 
in favour of a specific legal connection with the defendant entity and against the 
latter’s argument that the legislation on air traffic safety serves exclusively safety 
aspects and therefore public interests. 
27 Sixth, it is for this last reason, in particular, that the Oberster Gerichtshof is rather 
inclined to consider that Article 8 of Regulation (EC) No 550/2004, read in 
conjunction with Article 2(4) of Regulation (EC) No 549/2004 and Article 47 of 
the Charter of Fundamental Rights of the European Union, also protects the purely 
financial interests of each airspace user. However, such an interpretation of the 
provisions of EU air transport legislation is in no way mandatory and is ultimately 
based on the interpretation of the considerations of the Court of Justice of the 
European Union in Case C-353/20, Skeyes, which does not, however, contain any 
explicit position on the legal question referred for a preliminary ruling in the 
present case. In the view of the Chamber, it is therefore not possible to presume 
the existence of an ‘acte clair’, so that it seems necessary, in the interest of the 
uniform application of EU law by the courts of the Member States, to make a 
reference to the Court of Justice of the European Union for a preliminary ruling. 
28 [...] 
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Oberster Gerichtshof (Austria) 
Vienna, 27 May 2024 
[...]