62010CC0120_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. Airport noise is one of the most serious environmental challenges facing urban areas. The various interests at stake are no less significant: on the one hand – to name but a few – air transport, the movement of goods and people and the economic policies of each Member State; on the other, the protection of the environment and of people’s health.
2. This case gives the Court of Justice an opportunity to express its view on that delicate balance. The Conseil d’État (Council of State, Belgium) has referred four questions to the Court for a preliminary ruling, in which it expresses its doubts concerning the compatibility of regional legislation intended to counter noise pollution generated by aircraft using Brussels-National airport with Directive 2002/30/EC on the introduction of noise-related operating restrictions at European Union (‘EU’) airports. (2) The central issue in the case is, ultimately, the scope which must be given to what are known as ‘operating restrictions’.
3. However, the Court’s interpretation will have to take account of the broader context of the case. It must be borne in mind that Directive 2002/30 co-exists with other instruments of international law and secondary EU law, which also seek to combat noise pollution, including airport noise. Furthermore, both the European Court of Human Rights (‘ECHR’) and the constitutional and supreme courts of the Member States accord protection to citizens living in areas around airports. Articles 7 and 37 of the Charter of Fundamental Rights of the European Union provide further support, should any be needed. Accordingly, the interpretation of the concept of ‘operating restriction’ is not simply an exercise in interpreting an instrument of secondary legislation but an operation fraught with difficulties, which takes us, as will be seen below, into particularly sensitive territory.
I – European Union law
4. The European Community, with the aim of enhancing environmental protection and ensuring that the air transport sector develops in a context which is in keeping with sustainable development policies, adopted, on the basis of Article 80(2) EC, Directive 2002/30 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports. The environmental objective of the directive is made clear in recital 1 in the preamble, which states that ‘a key objective of the common transport policy is sustainable development’.
5. The focus of harmonisation in Directive 2002/30 are the so-called ‘operating restrictions’ which must be applied by EU airports, in order to mitigate noise disturbance, to aircraft which land at, or take off from, them. The risk that operating restrictions might differ as between the Member States and might consequently entail an obstacle to freedom of movement was the main reason behind the harmonisation undertaken by Directive 2002/30.
6. Article 2(e) of Directive 2002/30 defines operating restrictions as follows:
‘(e) “Operating restrictions” shall mean noise related action that limits or reduces access of civil subsonic jet aeroplanes to an airport. It includes operating restrictions aimed at the withdrawal from operations of marginally compliant aircraft at specific airports as well as operating restrictions of a partial nature, affecting the operation of civil subsonic aeroplanes according to time period.’
7. Article 4 of Directive 2002/30 lists the general rules applying to all operating restrictions, paragraph 4 being particularly noteworthy on account of its significance for this case:
‘Article 4
General rules on aircraft noise management
1. Member States shall adopt a balanced approach in dealing with noise problems at airports in their territory. They may also consider economic incentives as a noise management measure.
2. When considering operating restrictions, the competent authorities shall take into account the likely costs and benefits of the various measures available as well as airport-specific characteristics.
3. Measures or a combination of measures taken under this Directive shall not be more restrictive than necessary in order to achieve the environmental objective established for a specific airport. They shall be non-discriminatory on grounds of nationality or identity of air carrier or aircraft manufacturer.
4. Performance-based operating restrictions shall be based on the noise performance of the aircraft as determined by the certification procedure conducted in accordance with Volume 1 of Annex 16 to the Convention on International Civil Aviation, third edition (July 1993).’
8. Articles 5 and 6 of Directive 2002/30 establish measures to harmonise the rules for the preparation and introduction of the operating restrictions with which the directive is concerned:
‘Article 5
Rules on assessment
1. When a decision on operating restrictions is being considered, the information as specified in Annex II shall, as far as appropriate and possible, for the operating restrictions concerned and for the characteristics of the airport, be taken into account.
2. Where airport projects are subject to an environmental impact assessment pursuant to Directive 85/337/EEC, (3) the assessment carried out in accordance with that Directive shall be considered as meeting the requirements of paragraph 1, provided that the assessment has taken into account as far as possible the information as specified in Annex II to this Directive.
Article 6
Rules on the introduction of operating restrictions aimed at the withdrawal of marginally compliant aircraft
1. If the assessment of all available measures, including operating restrictions of a partial nature, carried out in conformity with the requirements of Article 5 demonstrates that the achievement of the objectives of this Directive requires the introduction of restrictions aimed at the withdrawal of marginally compliant aircraft, the following rules shall apply instead of the procedure laid down in Article 9 of Regulation (EEC) No 2408/92 (4) at the airport under consideration:
(a) six months after the completion of the assessment and decision on the introduction of an operating restriction, no services over and above those operated in the corresponding period of the previous year shall be allowed with marginally compliant aircraft at that airport;
(b) not less than six months thereafter, each operator may be required to reduce the number of movements of his marginally compliant aircraft serving that airport at an annual rate of not more than 20 % of the initial total number of these movements.
2. Subject to the rules on assessment of Article 5, city airports listed in Annex I may introduce measures that are more stringent, in terms of the definition of marginally compliant aircraft provided that these measures do not affect civil subsonic jet aeroplanes that comply, through either original certification or recertification, with the noise standards in Volume 1, Part II, Chapter 4 of Annex 16 to the Convention on International Civil Aviation.’
9. The temporal scope of Directive 2002/30 is dealt with in Article 7, which provides that Article 5 is not to apply to ‘operating restrictions that were already established on the date of entry into force of this Directive’.
10. Annex I to Directive 2002/30 sets out the airports which qualify as ‘city airports’. Brussels-National Airport does not appear on that list.
11. Directive 2002/30 entered into force on 28 March 2002, and the period within which it was to be implemented by the Member States expired on 28 September 2003.
12. A few months after the enactment of Directive 2002/30, the Community legislature adopted, on the basis of Article 175(1) EC, Directive 2002/49/EC relating to the assessment and management of environmental noise. (5) Although the latter does not expressly refer to Directive 2002/30, Article 1 sets out the objectives of Directive 2002/49 and states that the directive ‘shall … aim at providing a basis for developing Community measures to reduce noise emitted by the major sources, in particular road and rail vehicles and infrastructure, aircraft, outdoor and industrial equipment and mobile machinery’ (emphasis added).
13. Directive 2002/49 defines ‘environmental noise’ as ‘unwanted or harmful outdoor sound created by human activities, including noise emitted by means of … air traffic’. With a view to managing environmental noise in sensitive areas, Directive 2002/49 sets up three levels of action by means of planning measures: strategic noise mapping, action plans and acoustical planning. In addition, a system is established which harmonises noise-exposure limit values, values which, as Article 3(s) makes clear, may be different ‘for different types of noise (road-, rail-, air-traffic noise, industrial noise, etc.), different surroundings and different noise sensitiveness of the populations; they may also be different for existing situations and for new situations (where there is a change in the situation regarding the noise source or the use of the surrounding).’
14. Directive 2002/49 entered into force on 18 July 2002 and the period within which it was to be implemented by the Member States expired on 18 July 2004.
15. Articles 7 and 37 of the Charter of Fundamental Rights of the European Union make the following provision:
‘Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
…
Article 37
Protection of the environment
A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’
16. The explanations relating to the Charter, prepared by the Praesidium of the Convention, emphasise that Article 37 ‘is based on Articles 2, 6 and 174 of the EC Treaty [now replaced by Article 3(3) TEU and Articles 11 and 191 TFEU]. It also draws on the provisions of some national constitutions’.
II – National law
17. The Belgian Constitution confers legislative and executive competence on the federal government in relation to air transport, including airports, whilst the regions have powers, also legislative and executive, in respect of the environment. Article 23(4) of the Constitution also safeguards the right to protection of the environment.
18. The management of airports situated in their territory falls within the competence of the Belgian regions, except in the case of Brussels-National Airport, in respect of which the federal government has competence.
19. By an order of 17 July 1997, the Brussels-capital region adopted measures for noise abatement in the urban environment, exercising its powers in respect of environmental matters. For the purpose of implementing that order, the decree of 27 May 1999 on combating noise pollution generated by air traffic was adopted, which determined the maximum noise levels that the passage of aircraft over the Brussels-capital region may cause.
20. Article 2 of the decree sets the noise values which, if the passage of an aeroplane exceeds them, give grounds for imposing a fine. The fine is determined on the basis of the following criteria:
– Average noise level in decibels on the ground instead of at source.
– Area overflown.
– Time period.
21. The system set up by the Order of 17 July 1997 and by the Decree of 27 May 1999 on combating noise pollution generated by air traffic was declared to be compatible with the Constitution by the Conseil d’État. In its judgment of 9 May 2006, the upper administrative court stated that the management of aircraft noise, so far as it is noise at the point of origin, falls within the federal competence relating to transport whilst environmental noise, including noise whose source is aircraft, falls within the competence of the regional authorities.
22. Although the Brussels-Capital region has submitted an action plan in accordance with Directive 2002/49, that is not the case so far as Brussels Airport is concerned, for which the various authorities concerned have not produced a specific plan.
III – Facts and the dispute before the national court
23. Brussels-National Airport is located in the Flanders Region, although the flights operating from it also overfly the Brussels-Capital Region at a very low height. As has been noted in point 17 of this Opinion, competence for the management of the airport lies with the federal government. Therefore, three sets of Belgian authorities are directly affected, either actively or passively, by air transport for which Brussels-National Airport is the point of departure, the destination or a stopover. The parties taking part in these proceedings have pointed out that the abovementioned circumstances are at the root of a long and complex political and institutional conflict, which has also been the subject of litigation before the national courts.
24. European Air Transport (‘EAT’) is an airline forming part o f the DHL group, which operates cargo flights that use Brussels-National Airport as their point of departure, destination or stopover. On 24 November 2006 the Institut Bruxellois de Gestion de l’Environnement (‘IBGE’), a regional body responsible for supervising environmental legislation, initiated a procedure against EAT with a view to imposing a penalty for 62 possible infringements, over a period of one month, of the regional decree of 27 May 1999. It was claimed that EAT was responsible for night-time aircraft noise in excess of the values provided for in the decree. EAT contends that the regional legislation serving as a basis for the infringements for which it is held responsible is unlawful, since it requires noise levels to be measured on the ground and not at source. In EAT’s submission, measurement at source is a mandatory criterion under international law concerning transport and air safety.
25. On 19 October 2007 IBGE concluded its investigation and imposed an administrative penalty of EUR 56 113 on EAT, a decision which was appealed before the Collège d’Environnement (‘the Collège’) and which the Collège upheld, confirming the decision of IBGE.
26. EAT appealed against the decision of the Collège before the Conseil d’État, which, in turn, made two references on preliminary issues: one to the Cour Constitutionnelle (Constitutional court) and the other to the Court of Justice, the latter giving rise to these proceedings.
IV – The questions referred for a preliminary ruling and proceedings before the Court of Justice
27. On 5 March 2010 this reference for a preliminary ruling was received at the Court registry, the Conseil d’État raising the following four questions:
‘(1) Must the concept of “operating restriction” in Article 2(e) of Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports be interpreted as including rules imposing limits on noise levels, as measured on the ground, to be complied with by aircraft overflying areas located near the airport and providing that any person responsible for exceeding those limits may incur a penalty, it being understood that aircraft are required to keep to the designated routes and comply with the landing and take-off procedures laid down by other administrative authorities without taking account of the need to comply with those noise limitations?
(2) Must Articles 2(e) and 4(4) of Directive 2002/30 be interpreted as meaning that all “operating restrictions” must be “performance-based”, or do those provisions allow other provisions, relating to environmental protection, to restrict access to the airport on the basis of the noise level, as measured on the ground, to be observed by aircraft overflying areas located near the airport, it being provided that any person responsible for exceeding that level may incur a penalty?
(3) Must Article 4(4) of Directive 2002/30 be interpreted as precluding the existence, in addition to performance-based operating restrictions based on the noise emitted by aircraft, of rules on environmental protection which impose limits on noise levels, as measured on the ground, to be complied with by aircraft overflying areas located near the airport?
(4) Must Article 6(2) of Directive 2002/30 be interpreted as precluding rules which impose limits on noise levels, as measured on the ground, to be complied with by aircraft overflying areas located near the airport, and which provide that any person exceeding those limits may incur a penalty, where those rules are capable of being infringed by aircraft which comply with the standards in Volume 1, part II, chapter 4 of Annex 16 of the Convention on International Civil Aviation?’
28. Written observations were submitted, within the period laid down by Article 23 of the Statute of the Court of Justice, by EAT, the Collège, the French Government and the Commission.
29. EAT’s lawyers and those representing the Collège, as well as the agents of the Danish Government and of the Commission, took part in the hearing, which was held on 30 November 2010.
V – The questions referred for a preliminary ruling
30. It seems to me that, of the four questions raised by the Conseil d’État, only the first and third call for an answer.
31. So far as the second question is concerned, the Conseil d’État assumes when it asks the Court about the interpretation of certain provisions of Directive 2002/30 that the regional rules at issue amount to ‘operating restrictions’. As I shall go on to explain when suggesting an answer for the first and third questions, it follows from the actual wording and the objectives of Directive 2002/30 that the measures at issue are not, however, ‘operating restrictions’.
32. Nor, to my mind, does the fourth question call for an answer, since it is based on a misinterpretation of Article 6(2) of Directive 2002/30, a provision which applies solely to those airports designated as ‘city airports’. Brussels-National Airport is not included on the list in Annex I to Directive 2002/30 and, therefore, in accordance with Article 2(b), is not a ‘city airport’. Article 6(2) of Directive 2002/30 is thus not applicable to this case and, accordingly, there is no need to answer the national court’s fourth question.
VI – The first question
33. The Conseil d’État asks, in the first place, about the exact scope which Directive 2002/30 accords to the term ‘operating restriction’. In particular, it asks whether regional legislation laying down a penalty, which is intended to act as a punishment where certain maximum noise levels measured on the ground in areas near an airport are exceeded, must be regarded as an ‘operating restriction’ within the meaning of Article 2(e) of Directive 2002/30.
34. The provisions of Directive 2002/30 which the Court of Justice must interpret in these proceedings are certainly ambiguous and attest to the technical, economic and political difficulties which underlie the issue of airport noise. The use of traditional canons of interpretation gives a partial and perhaps incomplete answer. A correct reading of Directive 2002/30 thus calls for an analysis of both the travaux préparatoires
and the general legal context in which the directive is situated.
A – The history of Directive 2002/30 and its passage through the legislature
35. Aircraft noise is at the root of countless legal disputes at national, international and, as this case shows, European level. The various interests in play – economic as well as social and political – make it difficult to arrive at a general solution. The problems posed become particularly serious when they affect built-up areas near an airport. The factual background to the present case is a good illustration of that.
36. In 2001, with the aim of combating noise at EU airports, the Commission prepared a proposal for a directive the key object of which was to establish common rules for the adoption of noise-related operating restrictions at airports. (6) It was not by chance that the Commission chose to launch its initiative then – in the same year the Assembly of the International Civil Aviation Organisation (ICAO) significantly changed its stance in relation to the abatement of noise generated by civil aircraft. Although until that time the measures adopted by the ICAO were concerned with technical requirements for aircraft navigation, from 2001 the strategy became one based on the so-called ‘balanced approach’. (7)
37. This ‘balanced approach’ consists in addressing the issue of noise in two stages. The first is longer term
and focuses on identifying the whole range of sources of noise. The second is active
and requires four types of measure to be implemented in turn: noise reduction at source, land-use planning and management, noise-abatement operational procedures and operating restrictions. The last mentioned (operating restrictions) is a secondary measure, which is to be used only when the three other measures have been exhausted.
38. Although the European Union is not a member of the ICAO, all the Member States are. In addition, the efforts to coordinate the regulation of air traffic, a transnational phenomenon which accordingly requires common action as between States at international level, explain why the resolutions agreed on within the ICAO are applied virtually throughout the world. The European Union has in recent years acted with that end in view, ensuring that international aviation rules are applied uniformly – or, at the least, in a harmonised way – in all the Member States. In keeping with that policy, the European Community, as it then was, adopted legislation in all areas of the ‘balanced approach’ in which it had competence.
39. So far as noise control at source was concerned, Community legislation already existed in relation to aircraft noise, which was adopted over time with new measures being introduced to ensure that European rules were compatible with ICAO requirements. With regard to both the longer-term measures and land-use planning, Directive 2002/49 relating to the assessment and management of environmental noise was adopted in 2002 and contains provisions dealing specifically with airports. (8) The third matter addressed by the Community was the most onerous: the operating restrictions, in respect of which the Commission submitted the abovementioned proposal for a directive to the Council and to the European Parliament in November 2001. (9)
40. The explanatory memorandum to the proposal clearly states that the proposed directive ‘implements and develops further at Community level the ICAO guidance on noise management as endorsed by the 33rd ICAO Assembly, held in Montreal from 25 September until 5 October 2001’. (10) In accordance with that guidance, operating restrictions are defined as noise related action that limits or reduces access of civil aeroplanes to an airport. (11) Although the exceptional nature of the operating restrictions is at no time specifically stated, it is clear that the Commission’s original intention was to restrict the number of measures of that kind. The consequence of an operating restriction is a prohibition, absolute or partial, on access to an airport. For that reason, any operating restriction which is to be adopted or applied must be based on objective and reliable data concerning the aircraft which is to be subject to the measure. The Commission stressed in its proposal that those objective and reliable data had to be measured by means of the certification of aircraft, an instrument of general approval allowing the technical characteristics of each aircraft to be recorded.
41. During its passage through the European Parliament, the Commission’s proposal was not substantially amended but additions were made to it as a result of which the text more closely reflected the ICAO guidance. The Regional Policy, Transport and Tourism Committee proposed adding what is now Article 4(4) of the directive, which requires that operating restrictions be based on the noise performance of the aircraft. (12) The Environment Committee also confirmed that the operating restrictions were in the nature of a prohibition but regretted the fact that the legal basis selected (Article 80 EC concerning transport policy) denied the Member States the option of introducing stricter standards. (13) Thus, the Opinion of the Environment Committee accepted that ‘aircraft that comply with 5dB or more below the standard for Chapter-3 aircraft can never be banned’. (14)
42. It can be seen from the parliamentary debates that the Commission’s proposal was directed at two distinct addressees: airports and aircraft. Airports because they are required to apply the operating restrictions and aircraft because they are required to comply with the measure. What is more, it is apparent that the entire debate concerning operating restrictions was cast in terms of a prohibition or ban, in other words, measures which affect certain aircraft and which specifically prevent their landing or take-off at the airport applying the measures. At no time was the possibility raised of an operating restriction being adopted in the form of a set of rules imposing penalties, an urban development plan or special environmental protection rules. In fact, the restrictive nature of the proposal for a directive led a Member of the European Parliament to alert the Chamber to the need to adopt an integrated approach in relation to airport noise, particularly in view of the fact that the European Court of Human Rights had just delivered its judgment in Hatton
v United Kingdom . (15) In that Member’s view, the proposal did not generally address the issue of airport noise and he called on the Commission to put forward a new initiative to that effect. (16)
B – The concept of ‘operating restriction’ as it results from an interpretation of Directive 2002/30
43. The background outlined above is useful for determining the precise scope of Directive 2002/30. As will be seen below, the directive provided for a noise management system whose scope is confined to an area which requires strict delineation. The whole structure put in place by Directive 2002/30 starts from the concept of an ‘operating restriction’, on the basis of which provision is made for rules governing the adoption and effects of, and exceptions to, such a restriction. ‘Operating restrictions’ are one of the elements comprising what is known as the ‘balanced approach’ referred to above. Therefore, the scope attributed to ‘operating restrictions’ cannot entail any overlap with other measures which form part of the ‘balanced approach’ advocated by the ICAO.
44. With that as my starting point, I shall now go on to analyse the various elements of which an ‘operating restriction’ is composed. To my mind, a measure of this kind has a specific object and various subjects, which the directive seeks to define. The travaux préparatoires referred to above also serve to explain each element. Following consideration of the elements which make up an ‘operating restriction’, it is proposed to apply them to the measures of the Brussels-capital region at issue in the main proceedings, thereby providing an answer to the first question referred to the Court.
1. The object of the ‘operating restriction’
45. Article 2(e) of Directive 2002/30 defines operating restrictions as noise-related action ‘that limits or reduces access of civil subsonic jet aeroplanes to an airport’. It then goes on to specify that the measures may include all-out restrictions, the consequence of which is the withdrawal from operations of an aircraft at a specific airport, or restrictions of a partial nature which affect the operation of an aeroplane ‘according to time period’.
46. It is true that a measure which ‘limits’ or ‘reduces’ ‘access’ to an airport may take the form of very widely differing decisions. Thus, a ‘reduction’ could be construed as obstacles
to access and not as a prohibition. In that way, a ‘limitation’ would be identified with a prohibition
and a reduction with a bar which obstructs access but does not prohibit it. The second category could include measures imposing penalties, technical requirements that are not easily met, fees or taxes that are directly or indirectly discriminatory etc.
47. However, although such an interpretation is not impossible on the basis of a literal reading of Article 2(e) of Directive 2002/30, a more thorough analysis produces a different result.
48. Article 2(e) of Directive 2002/30 sets out the definition of ‘operating restrictions’ but goes on to specify the two forms which they may take: on the one hand, Article 2(e) refers to the withdrawal from operations of marginally compliant aircraft at specific airports, whilst, on the other, it then mentions restrictions of a partial nature which affect the operation of aeroplanes according to time period. The two cases correspond to the concepts of ‘limitation’ and ‘reduction’ referred to above. Accordingly, it seems clear that operating restrictions which ‘limit’ access are those which specifically prohibit the access of certain aircraft to an airport, whilst operating restrictions which ‘reduce’ access are partial in nature and restrict access for a certain time. In both cases, the provision invariably concerns prohibitions on access to an airport, whether they be absolute or restricted to certain times.
49. Furthermore, such prohibitions are imposed in advance and on an objective basis, applying solely where an aircraft meets certain conditions. Since an operating restriction is a measure which precedes rather than follows use of an airport, the conditions for its imposition, which relate exclusively to the aircraft, tend to be based on requirements that are standardised at international level. Such standardisation is given practical expression in the rules on certification, which are accepted as proof in most countries of the world that an aircraft complies with common standards.
50. In my view it is therefore clear that an ‘operating restriction’ within the meaning of Article 2(e) of Directive 2002/30 is a prohibition imposed in advance and on an objective basis, which prevents a civil subsonic jet from having access to an airport. The distinguishing feature of these restrictions is the express prohibition on landing. As a consequence, ex post measures for enforcement, such as a system involving penalties applicable in relation to the emission of noise, cannot be said to be ‘operating restrictions’.
51. The background to Directive 2002/30 supports that interpretation. During the directive’s passage through the European Parl iament, it became evident that there were a number of commercial disputes between the European Union and non-member States concerning, for the most part, the suspension of landing rights in the European Union for certain aeroplanes from non-member States. (17) The purpose of Directive 2002/30 was to apply the balanced approach decided upon in the ICAO some months previously, introducing greater flexibility in the criteria for applying operating restrictions at European airports. In the context of the balanced approach, operating restrictions are not intended to be extended to include any type of measure affecting air navigation – rather the opposite: they are to be limited solely and exclusively to essential cases, as advocated by the ICAO. (18) They are used in specific circumstances as an exception, since any operating restriction is in the nature of a prohibition and, therefore, burdensome. (19)
52. Other provisions of Directive 2002/30 confirm that operating restrictions are in the nature of a prohibition. Article 9, which provides for an exemption for aircraft operations of an exceptional nature, permits Member States to ‘authorise at airports situated in their territory, individual operations of marginally compliant aircraft which could not take place on the basis of … the directive’. It is clear from the wording of the provision that this exemption acts as an exception to a general rule which prohibits certain aircraft from using an airport. Likewise, Article 6(2) of Directive 2002/30 allows national authorities of city airports to increase the level of environmental protection, introducing ‘measures that are more stringent, in terms of the definition of marginally compliant aircraft’. Accordingly, the increases in the level of protection which States are entitled to make allow only one type of measure: variation of the scope ratione personae
of the operating restriction. Conversely, Directive 2002/30 does not allow protection to be increased on the basis of other criteria, thereby confirming that the directive contemplates only operating restrictions that are prohibitive in nature.
53. Accordingly, in my view, an operating restriction within the meaning of Article 2(e) of Directive 2002/30 is a prohibition, absolute or temporary, imposed in advance and on an objective basis, which specifically prevents – and does not merely render difficult or less attractive – the access of a civil subsonic jet aeroplane to a European Union airport.
2. Persons applying an ‘operating restriction’
54. It falls to the Member States to authorise the operating restrictions applied in airports but it is the airports which are responsible for ensuring that those restrictions are complied with. In view of the special features of any operating restriction, Directive 2002/30 requires the Member States to ensure that there are ‘competent authorities responsible for matters falling within [its] scope’. It can be seen from that that operating restrictions are adopted and applied by specialist authorities, a distinguishing feature of which is that they have and exercise powers in relation to air transport which are closely linked to the day-to-day operation of airports. (20)
55. From that perspective, the parties applying operating restrictions are the national air transport authorities and airport operators. They are responsible for adopting operating restrictions in accordance with the ‘balanced approach’ described above and in doing so are required to comply with various procedural requirements set out in Articles 4 to 6 of Directive 2002/30. It also falls to them to apply particular exceptions to the general rules, such as those provided for in Articles 8 and 9 of Directive 2002/30.
56. Directive 2002/30 has therefore established a specific institutional framework, under which the Member States must ensure that both the competent air-transport authorities and the operators responsible for the airports to which the directive applies are subject to substantive and procedural rules when an operating restriction is adopted or applied. The strictness of those provisions also serves as support for the position taken in points 45 to 53 of this Opinion, since, in view of the prohibition entailed by the operating restrictions, which prevent an aeroplane from using an airport either at all times or at certain times, Directive 2002/30 seeks to ensure that such restrictions are adopted only in exceptional cases and on the basis of a procedure which ensures that the ‘balanced approach’ is applied.
3. Persons to whom an ‘operating restriction’ applies
57. The addressees of an operating restriction – the ‘passive subjects’ to whom it applies – are aircraft. These restrictions are one more weapon in the armoury to be used against airport noise and, unlike industrial, environmental or planning rules, which apply to manufacturers, builders or landowners, operating restrictions are directed at aircraft. In the case of Directive 2002/30, the operating restrictions apply to civil subsonic jet aeroplanes.
58. Given the objective nature of the operating restrictions, which make a prohibition conditional upon an aircraft having certain technical characteristics, Directive 2002/30 requires that such conditions are assessed in accordance with pre-established criteria. Whether those conditions are fulfilled is verified by means of certification, an instrument subject to international rules which, as has been stated above, facilitates uniform control at airports in various States. For that reason, Article 4(4) of Directive 2002/30 states that performance-based operating restrictions must be based on the noise performance of aircraft in accordance with the Convention on International Civil Aviation. If an operating restriction bars access to aircraft which produces noise of a certain level, the measurement will be checked in accordance with international rules which harmonise the measuring standard. That standard thus serves to ensure the objectivity of the requirements which must be fulfilled prior to applying an operating restriction to an aeroplane.
59. Operating restrictions are therefore measures applying to aircraft that meet specific pre-established conditions which are based, in order to ensure that they are objective, on certification or on standards that are harmonised at international level.
4. Application of the concept of ‘operating restrictions’ to the measures adopted by the Brussels-capital region
60. In view of all the foregoing, the conclusion may be drawn that regional environmental legislation entailing the imposition of penalties, which lays down the maximum levels of noise pollution in urban areas, is not an operating restriction within the meaning of Article 2(e) of Directive 2002/30.
61. In the first place, the rules at issue do not prohibit, ex ante, access, either at all times or at certain times, to Brussels-National Airport, but instead provide that certain emission levels must not be exceeded. There is nothing to prevent an aeroplane landing and taking off from that airport and, in the event that the limits laid down in the rules are exceeded, the legal consequence is a penalty and not a prohibition. (21)
62. In the second place, the rules at issue do not apply ex ante but ex post :
the penalty is only imposed once an aircraft whose noise emissions exceed the limit values has used the airport. By contrast, an operating restriction is, as has been seen at point 50 of this Opinion, imposed prior to the airport being used.
63. In the third place, the regional rules are not adopted in the framework of a transport policy and are not approved or applied by the authorities competent in that sphere, since they form part of the environmental legislation which, under the Constitution, the Belgian regions are competent to adopt. Indeed, the competence in question was expressly endorsed by the Conseil d’État by judgments of 9 May 2006.
64. Finally, although the regional measures are directed at aircraft, the fact that they apply ex post means that whether they apply does not depend on criteria which are pre-determined either by certification or by harmonising standards adopted at international level. The only effective way of ensuring an appropriate degree of environmental noise is to deal with noise levels in the place which is to be protected, that is to say, the built-up areas near an airport. Thus, the legislation at issue does not use – and nor can it use – the criteria which an operating restriction requires an aircraft to meet if the restriction is to be applied to it.
65. That conclusion draws even more support from the fact that all the States which have taken part in these proceedings, as well as the Commission, are of the view that the measures in question are not operating restrictions. Consequently, it must be concluded that Article 2(e) of Directive 2002/30, when it defines ‘operating restrictions’, does not cover measures such as those provided for in the Decree of 27 May 1999 on the abatement of air-traffic noise.
5. Summary
66. In view of the reasoning set out above and in relation to the first question, I propose that the Court of Justice should interpret Article 2(e) of Directive 2002/30 as meaning that an operating restriction is a prohibition, absolute or temporary, imposed in advance and on an objective basis, which specifically prevents – and does not merely render difficult or less attractive – the access of a civil subsonic jet aeroplane to a European Union airport. Consequently, rules such as those provided for by the Decree of 27 May 1999 on combating noise pollution generated by air traffic are not ‘operating restrictions’ within the meaning of Article 2(e) of Directive 2002/30.
VII – The third question referred for a preliminary ruling
67. Once the possibility that the rules at issue fall within the scope of Directive 2002/30 has been discounted, the Conseil d’État’s next question concerns the compatibility with the directive of national rules on environmental protection which establish limit values for noise levels calculated on the ground instead of at source. In particular, the national court queries whether Article 4(4) of Directive 2002/30, which refers to a criterion for measuring aircraft noise at source contained in the Convention on International Civil Aviation, precludes the requirement for measurement on the ground laid down in the rules of the Brussels-capital region, even if those rules are not regarded as ‘operating restrictions’.
68. With its third question, the national court asks, in essence, whether Directive 2002/30 is an instrument of maximum harmonisation. If that were the case, any national measure which infringed, or made it difficult to apply, Directive 2002/30 would, regardless of whether the national legislation was outside the field of application of the directive, be contrary to it.
69. That question must be answered in the negative. Directive 2002/30 is not an instrument of maximum harmonisation and, in fact, interpreting it in that way would run counter to the objectives which it pursues. That conclusion is apparent from the legal context of Directive 2002/30 and also from the protection which the Member States and the European Union afford to fundamental environmental rights and, more specifically, to the right which safeguards individuals with regard to noise pollution.
A – The general legal framework applicable to airport-noise abatement and its impact on the interpretation of Directive 2002/30
70. As has been explained in points 45 to 59 of this Opinion, ‘operating restrictions’ are only one
of the measures to be adopted in the context of the ‘balanced approach’. The underlying purpose of that approach requires all the values and interests which converge around airport-noise abatement to be reconciled, without any one prevailing over the others. If Directive 2002/30 were to become an instrument which prevented the adoption of certain planning or environmental measures, the ‘balanced approach’ would have ceased to be balanced, the scales shifting to the side of transport policies.
71. That outcome would be incompatible not only with Directive 2002/30, but also with the principles of the international instruments on which the ‘operating restrictions’ regime draws. ICAO resolution A35‑5, which introduced the ‘balanced approach’ at international level, recognises at Appendix E that ‘States have legal obligations, laws, existing arrangements and established policies which may govern the management of noise problems at their airports and could affect the implementation of this Appendix’. (22) Similarly, Appendix F to the same resolution, relating to land-use planning and management, recognises that ‘while land-use management includes planning activities that may primarily be the responsibility of local authorities, it nevertheless affects airport capacity, which in turn has implications for civil aviation’. (23)
72. Therefore, the ICAO, fully aware that national environmental measures, such as those at issue in these proceedings, may affect air traffic indirectly, does not invite Member States to derogate from such provisions but rather to coordinate their actions within the framework of the so-called ‘balanced approach’. At no time are the States participating in the ICAO called on to limit their measures for the abatement of airport noise to operating restrictions. On the contrary, the ICAO resolutions, conscious of the constitutional values and interests involved, merely invite States to adopt a comprehensive approach which addresses and strikes a balance between all the interests involved.
73. With the aim of addressing the issue of noise in the way outlined above, the European Community, as it then was, enacted Directive 2002/49. It provides that the Member States will use various levels of planning to tackle noise disturbance. Specifically, Directive 2002/49 devotes particular attention to airport planning, which must be dealt with in the context of strategic noise mapping (Article 7), action plans (Article 8) and acoustical planning (Article 3(u)).
74. That legal framework reinforces the approach which has been described above: operating restrictions, as specific prohibitions imposed in the context of transport policy, co-exist with other national environmental measures. International law and Directive 2002/30 are not measures which conflict with one another but instead have distinct fields of application. (24) A case such as the Belgian one, where a regional authority adopts rules entailing the imposition of a penalty in order to protect neighbouring areas from high levels of noise pollution, does not fall within the scope of Directive 2002/30.
75. Irrespective of all the foregoing, account must be taken of the fact that, as the Commission pointed out in its written observations, the measure taken by the Brussels regional authorities, as a unilateral action which was not coordinated with the country’s other authorities, could be questionable from the point of view of Directive 2002/49, which requires a certain level of internal coordination in noise-pollution management. (25) As the Commission observes, the current situation at Brussels-National Airport, far from being ideal, reflects a lack of cooperation between the authorities, which could result in an infringement of Directive 2002/49 – but that would not be the case with Directive 2002/30, whose scope does not cover the regional measures at issue in these proceedings.
76. In conclusion, I take the view that both the international framework and Directive 2002/49 confirm the sectoral nature of Directive 2002/30, which must remain restricted exclusively to the adoption and regulation of, and exemptions from, ‘operating restrictions’ in the way described in points 45 to 59 of this Opinion. If Directive 2002/30 were interpreted as an instrument of maximum harmonisation, that would produce a result incompatible with the ‘balanced approach’ advocated by the relevant international rules and with Directive 2002/49, which seeks to take an integrated approach to the issue of noise, including airport noise.
B – Protection from noise pollution as a fundamental right and its impact on European Union legislation concerning airport noise
77. The answer which I propose for the third question finds further support if it is analysed from a more general perspective. As is well known, protection from the harmful effects of noise pollution is found in European Union law and in national legal orders through fundamental rights. That protection is therefore constitutional in nature and it is by no means irrelevant to the question which has arisen before the Conseil d’État.
78. The Charter of Fundamental Rights of the European Union includes in Article 7 the fundamental right to private and family life and home, whilst Article 37 expressly recognises the right to environmental protection. The latter right is expressed as a principle and, moreover, does not arise in a vacuum but instead responds to a recent process of constitutional recognition in respect of protection of the environment, in which the constitutional traditions of the Member States have played a part. (26) That is borne out by the explanatory notes to the Charter, which state that Article 37 ‘also draws on the provisions of some national constitutions’.
79. It should be noted that Article 52(3) of the Charter specifies that, in so far as the Charter contains rights which correspond to rights guaranteed by the European Convention on Human Rights (‘the Convention’), the meaning and scope of those rights are to be the same as those laid down by the Convention. According to the explanation of that provision, the meaning and scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case-law of the ECHR. Article 52(3), second sentence, of the Charter provides that the first sentence of paragraph 3 is not to prevent European Union law providing more extensive protection. (27) A contrario that prevents the European Union adopting measures affording less extensive protection.
80. The protection of the environment is an objective which the ECHR has integrated in its interpretation of Article 8 of the Convention, introducing it through the fundamental right to private and family life and home. (28) Specifically, the case-law of the ECHR has on a number of occasions held that noise pollution forms part of the environment for the purposes of Article 8 of the Convention. (29) The ECHR addressed the specific question of airport noise in its judgment in Hatton v United Kingdom, (30) acknowledging that aircraft noise gives States grounds for taking active protective measures and, at times requires them to do so. (31) In accordance with Article 53 of the Charter, that interpretation binds the European Union and must be taken into account by the Court of Justice.
81. That is the context in which it must be determined whether the harmonisation effected by Directive 2002/30 is to be regarded as maximum harmonisation. In view of the provision made by Articles 7 and 37 of the Charter, interpreted in the light of the case-law of the ECHR cited above, it may not readily be concluded that Directive 2002/30 brings about maximum harmonisation. Indeed, harmonisation of that kind would make it impossible to adopt measures for airport-noise abatement other than those expressly provided for in the directive. That would give rise to a kind of paralysis of State action against noise pollution, depriving States of any latitude in the exercise of their environmental, planning and health policies. Apart from any other considerations, such an effect would oblige individuals to bring proceedings against their States on the basis of Article 8 of the Convention, as interpreted by the ECHR – and in many cases those individuals could well be successful. (32)
82. As a consequence, and in view of the background of fundamental rights against which this case is set, I propose that the Court of Justice reject an interpretation whereby Directive 2002/30 is construed as effecting maximum harmonisation, with the consequences indicated above. Thus, Directive 2002/30 does not, in my view, prevent the Member States from adopting environmental legislation which indirectly affects the civil aviation provisions harmonised by the directive. In conclusion, national environmental legislation such as that at issue in the present case – although it requires civil subsonic aircraft noise to be measured on the ground – is not incompatible with Article 4(4) of Directive 2002/30, since it does not constitute an ‘operating restriction’.
VIII – Conclusion
83. In the light of the above analysis I propose that the Court reply to the Conseil d’État as follows:
1. An ‘operating restriction’ is a prohibition, absolute or temporary, imposed in advance and on an objective basis, which specifically prevents – and does not merely render difficult or less attractive – the access of a civil subsonic jet aeroplane to a European Union airport. Consequently, Article 2(e) of Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports must be interpreted as meaning that rules such as those provided for by the Decree of 27 May 1999 on combating noise pollution generated by air traffic are not ‘operating restrictions’ within the meaning of that provision.
2. On a proper construction, Article 4(4) of Directive 2002/30 does not preclude a national measure such as the Decree of 27 May 1999, which requires noise to be measured on the ground.
(1) .
(2)  –	Directive of the European Parliament and of the Council of 26 March 2002 (OJ 2002 L 85, p. 40).
(3)  – Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).
(4)  – Council Regulation of 23 July 1992 on access for Community air carriers to intra-Community air routes (OJ 1992 L 240, p. 8).
(5)  –	Directive of the European Parliament and of the Council of 25 June 2002.
(6)  –	Proposal for a Directive on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (COM [2001] 695 final) of 28 November 2001.
(7)  –	Resolution of the ICAO Assembly: A35‑5, Appendix C (document 9902).
(8)
–	Cited in footnote 5.
(9)  –	Cited in footnote 6.
(10)  –	Commission proposal, cited above, p. 3.
(11)  –	Article 2(e) of the proposal for a Directive.
(12)  –	See Amendment 9 from the Committee on Regional Policy, Transport and Tourism in its Report on the Proposal for a European Parliament and Council directive on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (A5-0053/2002), of 25 February 2002, pp. 10‑31.
(13)  –	Ibid, pp. 22‑31.
(14)  –	Ibid .
(15)  –	Speech by Mr Lannoye at the plenary session on 12 March 2002.
(16)  –	Ibid.
(17)  –	Specifically, the impending prohibition on ‘hushkit’ aircraft (aircraft equipped with noise reduction devices but with noise levels considered unsatisfactory). That restriction was affecting commercial relations between the European Union and the United States and, as can be seen from the parliamentary debates, Directive 2002/30 played a role in solving the dispute.
(18)  –	Point 1 of Appendix E urges States to ensure, whenever possible, that any operating restrictions be adopted only where such action is supported by a prior assessment of costs and benefits, whilst point 3(c) recommends adopting restrictions of a partial nature rather than an outright ban.
(19)  –	The Report on the application of Directive 2002/30 drawn up by the Commission confirms that any operating restriction is to be used exceptionally and as a last resort. For example, when it reports the view of the aircraft operating industry, the report states that the latter ‘considers the Directive as protection against the use of operating restrictions as a first resort, and as a guarantee of a reasonable timescale for their introduction of restrictions and of proper assessment of the costs and benefits of such restrictions’ (Report from the Commission to the Council and the European Parliament on the application of Directive 2002/30/EC, COM(2008) 66 final, p. 8).
(20)  –	See the Report on the application of Directive 2002/30, cited above, which repeatedly refers to the ‘right of individual airports to restrict … aircraft operations within the balanced approach framework’ (Report on application, p. 3).
(21)  –	Article 2 of the Decree of 27 May 1999 on combating noise pollution generated by air traffic.
(22)  –	Thirteenth recital to Appendix E, restated in 2007 by the ICAO Assembly in Resolution 35-22.
(23)  –	Seventh recital to Appendix F.
(24)
–	Although Directive 2002/49 does not refer to Directive 2002/30, the latter does refer to the former. As the Commission’s agent confirmed at the hearing, both directives have distinct fields of application and pursue common objectives but do so by means of different measures.
(25)  –	Concerning Directive 2002/49, see the analysis of Moral Soriano, L., ‘La directiva de ruido ambiental: el nuevo marco para la actuación comunitaria’, in Arana García, E. and Torres López, A., Régimen jurídico del ruido. Una perspectiva integral y comparada, Comares, Granada, 2004.
(26)
–	See, for example, Article 20.a of the German Basic Law, Article 24.1 of the Greek Constitution, Article 5 of the Polish Constitution, Article 66 o f the Portuguese Constitution, Article 45 of the Spanish Constitution or Article 35 of the Charter of Rights of the Czech Republic.
(27)  –	See, to that effect, Case C‑400/10 PPU McB.
[2010] ECR I-0000, paragraph 53, and Case C‑279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH [2010] ECR I-0000, paragraph 35.
(28)  –	See, inter alia, López Ostra
v Spain, judgment of 9 December 1994, Series A n. 303-C and Tătar
v Romania, judgment of 27 January 2009, not yet published.
(29)  –	See Hatton
v United Kingdom
ECHR 2003-VIII and Moreno Gómez
v Spain
ECHR 2004-X.
(30)  –	Hatton
v United Kingdom, cited in footnote 29.
(31)  –	See Frohwein, J./Peukert, W, EMRK-Kommentar, 2009 (3ª ed.), Article 8, paragraph 43 et seq.;
Lozano Cutanda, B., ‘La ecologización de los derechos fundamentales: la doctrina López Ostra c. España, Guerra y otros c. Italia y Hatton y otros c. Reino Unido del TEDH’, Revista Española de Derecho Europeo, No 1, 2002 and Eleftheriadis, P., ‘The Future of Environmental Rights in the European Union’, in Alston, P., The EU and Human Rights,
Oxford University Press, Oxford, 1999.
(32)  –	On the other hand, if the Court of Justice declares that the regional measures in question do constitute an ‘operating restriction’, it will be seen that they are incompatible with Directive 2002/30, since the former use a criterion for aircraft- noise measurement which is prohibited by the latter. In that case, the result would apply not only to the Brussels-Capital rules at issue here but also to any national environmental legislation intended to regulate environmental noise which has, directly or indirectly, an impact on air traffic. Such an interpretation would also end by calling into question the validity of Directive 2002/30 as a result of its incompatibility with Articles 7 and 37 of the Charter.