Opinion of the Advocate General — ECLI:EU:C:2001:499
Date: 2001-09-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Transport
Procedure: Reference for a preliminary ruling
Origin: Portugal

SUMMARY — CASE C-I 81/00 
Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Limits — Questions on the 
interpretation of Community law — Obligation to give a ruling 
(Art. 234 EC) 
2. Transport — Air transport — Access of Community carriers to intra-Community 
routes — Article 4 of Regulation No 2408/92 — Imposition of public service obli­
gations on scheduled air services serving a peripheral region — Compatibility with 
Member States' power to restrict cabotage until 1 April 1997 
(Council Regulation No 2408/92, Arts 3(2) and 4) 
3. Transport — Air transport — Access of Community carriers to intra-Community 
routes — Invitation to tender issued under Article 4(1) of Regulation No 2408/92 — 
Obligation on air carriers licensed by another Member State to submit bids in 
accordance with the conditions in Article 3(2) of the regulation •— Whether com­
patible with Community law — Proviso 
(Council Regulation No 2408/92, Arts 3(2) and 4(1)) 
4. Transport — Air transport — State aid — Decision by the Commission making 
approval of aid to an airline subject to the condition that the Portuguese Republic 
honour its undertaking to apply Article 4 of Regulation No 2408/92 to the 
autonomous regions of Madeira and the Azores with effect from 1 January 1996 at 
the latest — Right of that Member State to limit access to the relevant routes solely to 
carriers holding a licence that meets the conditions laid down by Article 3(2) of 
Regulation No 2408/92 
(Council Regulation No 2408/92, Arts 3(2) and 4(1)'(d); Commission Decision 94/698, 
Art. 1(e)) 
1. Whilst the Court does not have juris­
diction under Article 234 EC to apply 
the rules of Community law to a 
particular case or to judge the com­
patibility of provisions of national law 
with those rules, it may provide a 
national court with all the elements 
relating to the interpretation of Com­
munity law which may be useful to it in 
assessing the effects of the provisions of 
that law. 
In the context of the system of cooper­
ation between the Court of Justice and 
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FLIGHTLINE 
the national courts provided for by 
Article 234 EC, it is solely for the 
national court before which the dispute 
has been brought, and which must 
assume responsibility for the sub­
sequent judicial decision, to determine 
in the light of the particular circum­
stances of the case both the need for a 
preliminary ruling in order to enable it 
to deliver judgment and the relevance 
of the questions which it submits to the 
Court. Consequently, where the ques­
tions submitted by the national court 
concern the interpretation of Commu­
nity law, the Court of Justice is, in 
principle, bound to give a ruling. 
(see paras 20-21) 
2. The exercise by a Member State of the 
rights and powers laid down in 
Article 4 of Regulation No 2408/92 
on access for Community air carriers 
to intra-Community air routes in par­
ticular the right to impose public ser­
vice obligations on scheduled air ser­
vices to an airport serving a peripheral 
region or development region in its 
territory or on a thin route to any 
regional airport in its territory, does 
not presuppose or mean that that 
Member State must waive its right 
under Article 3(2) of that regulation 
to restrict competition until 1 April 
1997 in cabotage services within its 
territory. 
On the contrary, by stating at 
Article 4(d), that '[t]he right to operate 
such services shall be offered... to any 
Community air carrier entitled to oper­
ate such services', Article 4 had the 
effect, until 1 April 1997, of limiting 
operation of those services to carriers 
who satisfy the conditions laid down in 
the regulation, and in particular those 
laid down in Article 3(2). 
(see paras 26, 33, operative part 1) 
3. In so far as an invitation to tender 
issued under Article 4(1) of Regulation 
No 2408/92 does not imply any waiver 
of the right to limit the allocation of 
cabotage rights in accordance with 
Article 3(2) of the regulation, it is not 
incompatible with Community law for 
the Member State to require air car­
riers, in the context of such an invi­
tation to tender, to submit their offers 
in accordance with the conditions laid 
down in Article 3(2), provided that the 
invitation to tender did not continue to 
have effect beyond 1 April 1997. 
(see paras 35-37, operative part 2) 
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SUMMARY — CASE C-181/00 
4. Article 1(e) of Decision 94/698 con­
cerning increase in capital, credit guar­
antees and tax exemption in favour of 
an airline, which makes approval of the 
aid for which it provides subject to the 
condition that the Portuguese Republic 
honour its undertaking to apply 
Article 4 of Regulation No 2408/92 
to the autonomous regions of Madeira 
and the Azores with effect from 1 Ja­
nuary 1996 at the latest and publish the 
public service obligations for the routes 
in question, does not preclude that 
Member State from exercising its right 
under Article 3(2) of that regulation to 
limit access to the relevant routes solely 
to carriers holding a licence that meets 
the conditions laid down by that latter 
provision. 
On the contrary, it is clear from the 
sixth paragraph of point 3 of Chapter 
VIII of that decision that the Por­
tuguese Republic undertook to follow 
a public tender procedure for the con­
nections between the Portuguese main­
land and the islands of Madeira and the 
Azores in 1995 and that the right to 
operate those services was to be offered 
by public tender 'to any European air 
carrier entitled to operate such air 
services'. 
The words 'entitled to operate such air 
services' also appear in Article 4(1)(d) 
of the regulation and cannot have a 
different meaning in Decision 94/698. 
Therefore, the Portuguese Republic 
was entitled to limit the right to 
operate those routes to carriers that 
satisfied the conditions laid down in 
Article 3(2) of the regulation. 
(see paras 41-43, 45, operative part 3) 
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