Opinion of the Advocate General — ECLI:EU:C:2007:62
Date: 2007-01-25
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Transport
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary of the Judgment 1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the pre-litigation procedure (Art. 226 EC) 2. Transport – Air transport – Directive 2002/30 – Noise-related operating restrictions at Community airports (Arts 10, second para., EC and 249, third para. EC; Council Regulation No 925/1999; European Parliament and Council Directive 2002/30) 1. In an action under Article 226 EC, the letter of formal notice sent by the Commission to a Member State and the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure. In that regard, an observation by the Commission that a Member State did not repeal national legislation regulating night flights of certain types of civil subsonic jet aeroplanes at the time when it transposed Directive 2002/30 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports, and that, after the period prescribed for transposition, that national legislation was still in force, cannot constitute a new complaint, even if it was made only at the stage of the originating application. It is merely a finding of fact by the Commission that it may rely on in so far as the situation described may prove, first, that the situation had not changed since the expiry of the two-month period prescribed by the reasoned opinion and, second, that that national legislation was not a transitional measure intended to ensure continuity after the repeal of Regulation No 925/1999 on the registration and operation within the Community of certain types of civil subsonic jet aeroplanes which have been modified and recertificated as meeting the standards of volume I, Part II, Chapter 3 of Annex 16 to the Convention on International Civil Aviation, third edition. (see paras 25, 27) 2. The second paragraph of Article 10 EC, the third paragraph of Article 249 EC and Directive 2002/30 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports require that, during the period for transposition of that directive, Member States refrain from taking any measures liable seriously to compromise the result prescribed by that directive. They cannot therefore adopt, during that period, measures which, while pursing the same objective, namely the reduction in the number of persons suffering from the harmful effects of aircraft noise, hinder the introduction of uniform operating restrictions throughout the Community. The adoption by a Member State, during the transpositon period of the directive, of legislation regulating night flights of certain types of civil subsonic jet aeroplanes, designed not to transpose the directive but to establish a regulatory framework harmonised at national level to reduce noise impact caused by aircraft based on the approach laid down in Regulation No 925/1999, namely the establishment of operating restrictions on the basis of the engine by-pass ratio designed to prohibit definitively the operation of recertificated civil subsonic jet aeroplanes, is liable seriously to compromise the result prescribed by Directive 2002/30. In that regard, adoption of that national legislation to enter into force less than three months before the expiry date of the period prescribed for transposing the directive gives rise to unduly unfavourable treatment for certain categories of aeroplanes and has a lasting impact on the conditions of transposition and implementation of that directive in the Community. By reason of the ban on the operation of various aeroplanes resulting from the application of that national legislation, the assessment of the noise impact provided for in the directive cannot take into account the noise produced by all aeroplanes in accordance with the rules defined in Volume 1, Part II, Chapter 3 of Annex 16 to the Convention on International Civil Aviation and, therefore, the optimum improvement in noise management cannot be achieved in accordance with the provisions set out in the said directive. (see paras 63-65, 68)