Opinion of the Advocate General — ECLI:EU:C:2000:250
Date: 2000-05-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Transport
Procedure: Action for annulment - unfounded
Origin: Italy

Summary of the Judgment 
1. Transport — Air transport — Access of Community carriers to intra-Community 
routes — Examination by the Commission of the distribution of traffic between the 
airports within an airport system — Review of national measures in the light of the 
principles of non-discrimination and proportionality — Lawful 
(Council Regulation No 2408/92, Art. 8(1) and(3)) 
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SUMMARY — CASE C-361/98 
2. Transport — Air transport — Access of Community carriers to intra-Community 
routes — Examination by the Commission of the distribution of traffic between the 
airports within an airport system — Observance by the Commission of the principle of 
proportionality — Scope 
(Council Regulation No 2408/92, Art. 8(3)) 
1. The Commission was fully entitled, 
within the framework of the power 
granted to it under Article 8(1) and (3) 
of Regulation No 2408/92 on access 
for Community air carriers to intra-
Community air routes, to examine, 
first, whether national measures impos­
ing restrictions on the freedom to 
provide services are applicable without 
distinction and, second, whether those 
restrictions are such as to achieve the 
objective which they envisage, without 
going beyond what is necessary to 
achieve it. 
(see para. 36) 
2. Under Article 8(3) of Regulation 
No 2408/92 on access for Community 
air carriers to intra-Community air 
routes, it is for the Commission merely 
to examine the national measure 
adopted by the Member State con­
cerned and to decide, after consulting 
the committee referred to in Article 11 
of that regulation, whether that State 
may continue to apply that measure. In 
those circumstances, since the Commis­
sion was not empowered to propose an 
amendment to the national measures 
enacted, it cannot be accused of 
infringing the principle of proportion­
ality by having failed to suggest that 
the national authorities adopt less 
restrictive measures. 
(see paras 72-73) 
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