Opinion of the Advocate General — ECLI:EU:C:2001:125
Date: 2001-03-06
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services;Transport
Procedure: Action for failure to fulfil obligations - successful
Origin: Portugal

Summary of the Judgment 
1 . Actions for failure to fulfil obligations — Commission's right of action — Discre­
tion — Judicial review — Limits 
(EC Treaty, Art. 169 (now Art. 226 EC» 
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SUMMARY — CASE C-70/99 
2. Transport — Air transport — Freedom to provide services — Restrictions —• 
National rules providing for different rates of airport tax for national and intra-
Community flights — Not permissible 
(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC); Council Regulation 
No 2408/92, Art. 3(1)) 
1. Notwithstanding its other powers 
under the Treaty to ensure that Mem­
ber States comply with Community 
law, the Commission enjoys a discre­
tion in deciding whether or not to 
commence an action for failure to fulfil 
obligations. It is not required to justify 
its decision, nor will the admissibility 
of the action be dependent upon the 
circumstances dictating its choice. The 
Court of Justice need only ensure that 
the procedure adopted may, in princi­
ple, be employed with regard to the 
alleged infringement. 
(see para. 17) 
2. National rules which provide for a 
higher passenger service tax for intra-
Community flights than that applicable 
to domestic flights and for a higher 
security tax for intra-Community 
flights than that applicable to certain 
domestic flights must be regarded as 
constituting a restriction on the free­
dom to provide services prohibited 
under the combined provisions of Arti­
cles 59 of the Treaty (now, after 
amendment, Article 49 EC) and 3(1) 
of Regulation No 2408/92 on access 
for Community air carriers to intra-
Community air routes, the purpose of 
which is to define the conditions for 
applying the principle of freedom to 
provide services in the air transport 
sector. Article 59 of the Treaty pre­
cludes, in particular, in the perspective 
of the single market, the application of 
any national legislation which has the 
effect of making the provision of ser­
vices between Member States more 
difficult than the provision of services 
purely within one Member State. 
(see paras 22, 27, 38) 
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