Opinion of the Advocate General — ECLI:EU:C:2010:776
Date: 2010-12-16
Language of the case: French
Subject matter: Transport
Procedure: Action for annulment - unfounded
Origin: Luxembourg

Summary of the Judgment 1. Transport – Air transport – Directive 2009/12 – Airport charges – Field of application – Breach of the principle of equal treatment – None (Art. 80(2) EC; European Parliament and Council Directive 2009/12) 2. Transport – Air transport – Directive 2009/12 – Airport charges – Field of application – Breach of principle of proportionality – None (Art. 5(3) EC; European Parliament and Council Directive 2009/12) 3. Community law – Principles – Principle of subsidiarity – Application in the field of air transport (Arts 5(2) EC and 80 EC) 1. The comparability of different situations must be assessed with regard to all the elements which characterise them. These elements must in particular be determined and assessed in the light of the subject-matter and purpose of the act of the Union drawing the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account. Directive 2009/12 on airport charges was adopted on the basis of Article 80(2) EC, which provides that the Council may decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport. Thus, by empowering the Council to decide when, how and to what extent it should intervene as regards sea and air transport, the Treaty confers broad legislative powers on it as regards the adoption of appropriate common rules. When reviewing the exercise of such a power, the Union judicature may not substitute its own assessment for that of the Union legislature, but must confine itself to examining whether the latter contains a manifest error or constitutes a misuse of powers or whether the legislature clearly exceeded the bounds of its legislative discretion. In any event, it is open to the legislature to rely on categorisation according to objective criteria and on the basis of general findings in order to introduce a general, abstract system of rules. That is even more the case when implementation by the Union legislature of a common policy involves the need to evaluate a complex economic situation, as is generally the case in questions of air transport. Having regard to those principles, the exercise of its powers by the Union legislature of its powers, in adopting Directive 2009/12, is not vitiated by a manifest error or by a misuse of power, and it has not manifestly exceeded the limits of its broad legislative discretion in this field by considering that Member States’ secondary airports are not in the same situation, as regards airport users, as the main airports. In Member States in which no airport reaches the minimum threshold laid down in Directive 2009/12, the airport with the highest passenger movements per year must be regarded as the point of entry into the Member State concerned, which confers on it a privileged position as regards airport users. However, airports which do not fall within the ambit of Directive 2009/12 cannot, irrespective of the actual number of passenger movements per year, be regarded as the main airports of the Member States in which they are established. Such airports can be regarded as secondary airports of the Member States which, in principle, are of different strategic importance to airlines from the main airports, which puts them in a different situation as regards airport users when airport charges are fixed. (see paras 32-35, 47-48, 50) 2. As regards the judicial review of compliance with the requirements which follow from the principle of proportionality, in the fields in which the Union legislature has a broad legislative power, such as air transport matters, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institutions seek to pursue. However, even though it has such a power, the Union legislature must base its choice on objective criteria. Furthermore, in assessing the burdens associated with various possible measures, it must examine whether the objectives pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators. Directive 2009/12 on airport charges does not infringe the principle of proportionality by including in its scope airports located in Member States in which no airport reaches the minimum size laid down in that directive and which have the highest passenger movements per year, regardless of the actual number of such movements. As regards whether the adoption in Directive 2009/12 of a framework requiring observance of common principles for the establishment of airport charges at national level is appropriate to achieve the objective of that directive, when there is a risk that the airport managing bodies would find themselves in a privileged position in relation to airport users and, accordingly, a risk of abuse of that position in the fixing of airport charges, such a framework is likely, in principle, to prevent such a risk from becoming reality. In that regard, there is nothing to support a finding that the charges under the system introduced by Directive 2009/12, for the airports concerned or for Member States, are manifestly disproportionate to the advantages which that system brings. (see paras 62-64, 66, 68-69) 3. When the Union legislature uses Article 80 EC as a legal basis, the principle of subsidiarity falls to be applied inasmuch as that provision does not give it exclusive competence to regulate air transport. (see para. 79)