Provisional text
JUDGMENT OF THE COURT (Third Chamber)
12 February 2026 (*)
( Reference for a preliminary ruling – Air transport – Regulation (EC) No 549/2004 – Single European sky – Regulation (EC) No 550/2004 – Provision of air navigation services in the single European sky – Article 8 – Air traffic service providers – Articles 14 and 15 – Charges payable by airspace users – Failure of an aeronautical telecommunications server – Cancellation of flights – Alleged culpable negligence on the part of the provider concerned – Airspace users – Protection of those users against the material damage caused by such negligence )
In Case C‑408/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 27 May 2024, received at the Court on 12 June 2024, in the proceedings
Republik Österreich
v
Austrian Airlines AG,
THE COURT (Third Chamber),
composed of C. Lycourgos, President of the Chamber, O. Spineanu-Matei, S. Rodin, N. Piçarra (Rapporteur) and N. Fenger, Judges,
Advocate General: J. Kokott,
Registrar: G. Chiapponi, Administrator,
having regard to the written procedure and further to the hearing on 21 May 2025,
after considering the observations submitted on behalf of:
–        the Republik Österreich, by C. Nemeth and S. Ullreich, acting as Agents,
–        Austrian Airlines AG, by J. Eichmeyer, Rechtsanwältin,
–        the Austrian Government, by A. Posch, J. Schmoll and G. Kunnert, acting as Agents,
–        the Belgian Government, by S. Baeyens and P. Cottin, acting as Agents,
–        the French Government, by B. Herbaut and B. Travard, acting as Agents,
–        the European Commission, by R. Álvarez Vinagre and G. Meessen, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 4 September 2025,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Article 8 of Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky (the service provision Regulation) (OJ 2004 L 96, p. 10), as amended by Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009 (OJ 2009 L 300, p. 34) (‘Regulation No 550/2004’), and of Article 2(4) of Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation) (OJ 2004 L 96, p. 1), as amended by Regulation No 1070/2009 (‘Regulation No 549/2004’).
2        The request has been made in proceedings between the Republik Österreich (Republic of Austria), represented by the Finanzprokuratur, and Austrian Airlines AG concerning compensation for the material damage suffered by that airline as a result of the cancellation of flights caused by the failure of an aeronautical telecommunications server managed by Austro Control.
Legal context
European Union law
Regulation No 549/2004
3        Recital 7 of Regulation No 549/2004 states:
‘Airspace constitutes a limited resource, the optimum and efficient use of which will be possible only if the requirements of all users are taken into account and where relevant, represented in the whole development, decision-making process and implementation of the single European sky, including the Single Sky Committee.’
4        Article 1 of that regulation, entitled ‘Objective and scope’, provides, in paragraph 1:
‘The objective of the single European sky initiative is to enhance current air traffic safety standards, to contribute to the sustainable development of the air transport system and to improve the overall performance of air traffic management (ATM) and air navigation services (ANS) for general air traffic in Europe, with a view to meeting the requirements of all airspace users. This single European sky shall comprise a coherent pan-European network of routes, network management and air traffic management systems based only on safety, efficiency and technical considerations, for the benefit of all airspace users. In pursuit of this objective, this Regulation establishes a harmonised regulatory framework for the creation of the single European sky.’
5        Article 2 of the regulation includes, inter alia, the following definitions:
‘1.      “air traffic control (ATC) service” means a service provided for the purpose of:
(a)      preventing collisions:
–        between aircraft, and
–        in the manoeuvring area between aircraft and obstructions; and
(b)      expediting and maintaining an orderly flow of air traffic;
…
4.      “air navigation services” means air traffic services; communication, navigation and surveillance services; meteorological services for air navigation; and aeronautical information services;
…
8.      “airspace users” means operators of aircraft operated as general air traffic;
…
10.      “air traffic management (ATM)” means the aggregation of the airborne and ground-based functions (air traffic services, airspace management and air traffic flow management) required to ensure the safe and efficient movement of aircraft during all phases of operations;
11.      “air traffic services” means the various flight information services, alerting services, air traffic advisory services and ATC services (area, approach and aerodrome control services);
…
23a.      “flight information service” means a service provided for the purpose of giving advice and information useful for the safe and efficient conduct of flights;
23b.      “alerting service” means a service provided to notify relevant organisations regarding aircraft in need of search and rescue aid, and to assist such organisations as required;
…’
6        Article 3 of that regulation, entitled ‘Fields for action by the Community’, provides, in paragraph 1:
‘This Regulation establishes a harmonised regulatory framework for the creation of the single European sky in conjunction with:
…
(b)      [Regulation No 550/2004]; …
…
and with the implementing rules adopted by the Commission on the basis of this Regulation and the regulations referred to above.’
Regulation No 550/2004
7        Recitals 4 and 10 of Regulation No 550/2004 state:
‘(4)      In order to create the single European sky, measures should be adopted to ensure the safe and efficient provision of air navigation services consistent with the organisation and use of airspace as provided for in Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation) [(OJ 2004 L 96, p. 20)]. The establishment of a harmonised organisation for the provision of such services is important in order to respond adequately to the demand of airspace users and to regulate air traffic safely and efficiently.
…
(10)      Whilst guaranteeing the continuity of service provision, a common system should be established for certifying air navigation service providers, which constitutes a means for defining the rights and obligations of those providers and for regular monitoring of compliance with such requirements.’
8        Article 1 of Regulation No 550/2004, entitled ‘Scope and objective’, provides, in paragraph 1:
‘Within the scope of [Regulation No 549/2004], this Regulation concerns the provision of air navigation services in the single European sky. The objective of this Regulation is to establish common requirements for the safe and efficient provision of air navigation services in the Community.’
9        Article 6 of Regulation No 550/2004, entitled ‘Common requirements’, which opens Chapter II of that regulation laying down rules for the provision of those services, is worded as follows:
‘Common requirements for the provision of air navigation services shall be established in accordance with the procedure referred to in Article 5(3) of [Regulation No 549/2004]. The common requirements shall include the following:
–        technical and operational competence and suitability,
–        systems and processes for safety and quality management,
–        reporting systems,
–        quality of services,
–        financial strength,
–        liability and insurance cover,
–        ownership and organisational structure, including the prevention of conflicts of interest,
–        human resources, including adequate staffing plans,
–        security.’
10      Article 7 of Regulation No 550/2004, entitled ‘Certification of air navigation service providers’, provides:
‘1.      The provision of all air navigation services within the [Union] shall be subject to certification by Member States.
…
3.      National supervisory authorities shall issue certificates to air navigation service providers where they comply with the common requirements referred to in Article 6. …
…
7.      National supervisory authorities shall monitor compliance with the common requirements and with the conditions attached to the certificates. Details of such monitoring shall be included in the annual reports to be submitted by Member States pursuant to Article 12(1) of [Regulation No 549/2004]. If a national supervisory authority finds
that the holder of a certificate no longer satisfies such requirements or conditions, it shall take appropriate measures while ensuring continuity of services on condition that safety is not compromised. Such measures may include the revocation of the certificate.’
11      Article 8 of Regulation No 550/2004, entitled ‘Designation of air traffic service providers’, states:
‘1.      Member States shall ensure the provision of air traffic services on an exclusive basis within specific airspace blocks in respect of the airspace under their responsibility. For this purpose, Member States shall designate an air traffic service provider holding a valid certificate in the Community.
…
3.      Member States shall define the rights and obligations to be met by the designated air traffic service providers. …
4.      Member States shall have discretionary powers in choosing an air traffic service provider, on condition that the latter fulfils the requirements and conditions referred to in Articles 6 and 7.
…’
12      Under Article 14 of that regulation, entitled ‘General’, in Chapter III thereof, itself entitled ‘Charging schemes’:
‘In accordance with the requirements of Articles 15 and 16, the charging scheme for air navigation services shall contribute to greater transparency in the determination, imposition and enforcement of charges to airspace users and shall contribute to the cost efficiency of providing air navigation services and to efficiency of flights, while maintaining an optimum safety level. …’
13      Article 15 of that regulation, headed ‘Principles’, provides:
‘1.      The charging scheme shall be based on the account of costs for air navigation services incurred by service providers for the benefit of airspace users. The scheme shall allocate these costs among categories of users.
…
3.      Member States shall comply with the following principles when setting charges in accordance with paragraph 2:
…
(f)      charges shall encourage the safe, efficient, effective and sustainable provision of air navigation services with a view to achieving a high level of safety and cost-efficiency and meeting the performance targets and they shall stimulate integrated service provision, whilst reducing the environmental impact of aviation. …
…’
Implementing Regulation No 1035/2011
14      Commission Implementing Regulation (EU) No 1035/2011 of 17 October 2011 laying down common requirements for the provision of air navigation services and amending Regulations (EC) No 482/2008 and (EU) No 691/2010 (OJ 2011 L 271, p. 23), as amended by Commission Implementing Regulation (EU) No 448/2014 of 2 May 2014 (OJ 2014 L 132, p. 53) (‘Implementing Regulation No 1035/2011’), includes Annex I, entitled ‘General requirements for the provision of air navigation services’, which is worded as follows:
‘1.      TECHNICAL AND OPERATIONAL COMPETENCE AND CAPABILITY
Air navigation service providers shall be able to provide their services in a safe, efficient, continuous and sustainable manner consistent with any reasonable level of overall demand for a given airspace. To this end, they shall maintain adequate technical and operational capacity and expertise.
…
3.      SAFETY AND QUALITY MANAGEMENT
…
3.2.      Quality management system
Air navigation service providers shall have in place a quality management system which covers all air navigation services that they provide, according to the following principles.
The quality management system shall:
(a)      define the quality policy in such a way as to meet the needs of different users as closely as possible;
…
7.      LIABILITY AND INSURANCE COVER
Air navigation service providers shall have in place arrangements to cover their liabilities arising from applicable law.
…’
Austrian law
The Law on Aviation
15      Paragraph 120 of the Bundesgesetz über die Luftfahrt (Federal Law on Aviation) of 2 December 1957 (BGBl. 253/1957), in the version applicable to the facts in the main proceedings (‘the Law on Aviation’), provides:
‘(1)      Unless otherwise provided for in or by international conventions, provisions of EU law or this Federal Law, the performance of air navigation, as a public authority task of the Federation, shall be the responsibility of Austro Control. Austro Control is, for the purposes of the performance of air traffic services within the meaning of Paragraph 119(2)(1)(a) [of this Law] and aviation weather services within the meaning of Paragraph 119(2)(1)(c) [of this Law], appointed on an exclusive basis, within the meaning of Articles 8 and 9 of Regulation [No 550/2004].
…
(5)      Air navigation service providers are required to have the air navigation facilities necessary for the proper and safe performance of the air navigation tasks assigned to them and in line with international standards, to maintain them in operational condition and to operate them properly.
…’
Law on Austro Control
16      Paragraph 2 of the Bundesgesetz über die Austro Control Gesellschaft mit beschränkter Haftung (Federal Law on the limited liability company Austro Control) (BGBl. 898/1993), in the version applicable to the facts in the main proceedings (‘the Law on Austro Control’), is worded as follows:
‘(1)      Austro Control is to perform all the tasks previously assigned to the Bundesamt für Zivilluftfahrt [(Federal Civil Aviation Office, Austria)] under the Law on Aviation, and in the statutory instruments adopted under that law and in the Flugsicherungsstreckengebührengesetz [(Law on air navigation route charges) (BGBl. 137/1986)], with the exception of those delegated by statutory instrument under Paragraph 140b of the [Law on Aviation]. Austro Control is also required to perform the tasks entrusted to it by federal laws or by statutory instruments adopted on the basis of those federal laws. Those tasks are subject to an operating obligation. Austro Control shall make all preventive organisational arrangements in order to be able to perform those tasks under the control of the public authorities.
…’
17      Paragraph 10 of the Law on Austro Control, entitled ‘Liability’, provides, in subparagraph 1:
‘The Federation is liable for the damage which the employees of Austro Control, in the performance of their duties under Paragraph 2(1) and (3) of this Federal Law, have caused to any person in implementation of the laws, in accordance with the provisions of the Amtshaftungsgesetz [(Law on the liability of public authorities)] (BGBl. 20/1949). The employee is not liable to the injured party. …’
Law on the liability of public authorities
18      Paragraph 1(1) of the Law on the liability of public authorities, in the version applicable to the facts in the main proceedings (‘the Law on the liability of public authorities’), provides:
‘The Federation, the Länder, the municipalities, other bodies governed by public law, and social security institutions … shall be liable in accordance with civil law provisions,
for any unlawful and culpable damage to property or persons caused to any legal subject by persons acting as representatives of the Federation. The representative shall not be liable to the injured party. Compensation for the damage shall be payable only in monetary form.’
The dispute in the main proceedings and the question referred for a preliminary ruling
19      Austro Control is a limited liability company whose sole shareholder is the Republic of Austria. In the performance of its statutory tasks, Austro Control operates the Aeronautical Fixed Telecommunication Network server (‘the AFTN server’), which provides for the transmission of air traffic-related technical information between airlines, Austro Control itself and Eurocontrol, the European coordinating body established in Brussels (Belgium).
20      Austrian Airlines, an airline based at Vienna-Schwechat airport (Austria), uses the air traffic services provided by Austro Control for its flights to and from that airport, in return for payment of the charges laid down for those services.
21      On 28 August 2016, a technical failure of the AFTN server led to a significant decrease in landing and take-off rates at that airport. Austrian Airlines submits that that failure forced it to cancel 60 flights, causing it damage amounting to EUR 373 140.46, including ticket refunds, re-routing on flights with other airlines, losses relating to code-share flights, catering, accommodation and transport costs for passengers, sending on of baggage and staff overtime pay.
22      Taking the view that Austro Control was responsible for the failure of the AFTN server, for having failed to put in place, as a preventive measure, the technical and personnel measures necessary for the proper functioning of that server, Austrian Airlines brought an action for damages against the Republic of Austria on the basis of Paragraph 10(1) of the Law on Austro Control and Paragraph 1(1) of the Law on the liability of public authorities.
23      The Republic of Austria, represented by the Finanzprokuratur, disputed any culpable or unlawful conduct on the part of Austro Control in the management of the AFTN server. It also maintained that the relevant provisions of national and EU law relating to air navigation exclusively serve the general interest of air transport safety, rather than the financial interests of airspace users, which is confirmed by the absence of provisions laying down rules on liability in that area.
24      The court of first instance dismissed Austrian Airlines’ action for damages on the ground that the sole objective of the national and EU provisions on air navigation is to regulate air traffic and not to protect the assets of air carriers. In those circumstances, that court considered that it was not necessary to examine whether Austro Control’s staff had acted unlawfully and culpably.
25      By contrast, the appeal court hearing the case brought by Austrian Airlines concluded that, although the provisions of EU law relating to air navigation are primarily intended to ensure air safety, they also protect the economic interests of air carriers as airspace users, especially since those users pay charges for air navigation services provided to them by providers such as Austro Control.
26      The Oberster Gerichtshof (Supreme Court, Austria), which is the referring court, hearing an action brought by the Republic of Austria, represented by the Finanzprokuratur, against the appeal decision, states that, according to its case-law on Paragraph 1(1) of the Law on the liability of public authorities, even in the case of a culpable breach of a national legal provision, only damage the prevention of which is one of the purposes of the infringed provision may be compensated. That court states that the determining factor in establishing the liability of public authorities is the protective objective of the infringed provision, as determined through interpretation.
27      That court accepts in principle that a provision of national law pursues an objective of protecting individual interests where a particular legal relationship exists between the body which has infringed such a provision and the individual harmed. On the other hand, the question of the existence of such an objective normally has to be answered in the negative where the performance of public service tasks by that body affects such a wide and indeterminate number of persons that they must be treated in the same way as the general public, which excludes the possibility of establishing the liability of the public authorities even in the event of unlawful and culpable conduct.
28      The referring court notes that the disagreement between the parties to the main proceedings concerns the question whether the provisions of EU law relating to air navigation, the main objective of which is to ensure air safety, also protect airspace users against financial damage caused by unlawful and culpable negligence on the part of the air traffic service provider, designated in accordance with Article 8 of Regulation No 550/2004, namely, in the present case, Austro Control. In its view, the objective pursued by that regulation is decisive and must be determined independently in the light of EU law and its methods of interpretation.
29      According to that court, it follows from the judgment of 2 June 2022, Skeyes (C‑353/20, EU:C:2022:423), that the provisions of Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004, which defines air navigation services, confer on airspace users rights that may be affected by the closure of that airspace and that the objective of the provisions of EU law relating to air navigation is not limited to air safety in the strict sense.
30      That court is uncertain whether the financial interests of those users fall within the scope of the protective objective pursued by those provisions, which would make it possible to establish the liability of the Republic of Austria for the financial damage caused by Austro Control’s unlawful and culpable conduct, in accordance with the Law on the liability of public authorities.
31      The referring court notes that the obligation on Austrian Airlines to pay charges in order to benefit from the air traffic services provided by Austro Control argues in favour of the existence of a specific legal relationship between the two entities in question. On that basis, in particular, it is inclined to consider that Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004 and Article 47 of the Charter of Fundamental Rights of the European Union, also protects the financial interests of individual airspace users.
32      In those circumstances the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is Article 8 of [Regulation No 550/2004], read in conjunction with Article 2(4) of [Regulation No 549/2004], to be interpreted as meaning that the provision of air navigation services is also intended to protect every user of air space against purely financial damage resulting from unlawful and culpable negligence on the part of the air navigation service provider responsible for air navigation services?’
Consideration of the question referred
Preliminary observations
33      It is apparent from the request for a preliminary ruling that the question referred, which relates to the scope of the protective objective pursued, inter alia, in Article 8 of Regulation No 550/2004, arises from the fact that, under the Law on the liability of public authorities, as interpreted by the referring court, the determining factor for establishing that liability is the protective objective of the infringed provision. In the present case, that provision is Paragraph 120 of the Law on Aviation, which appoints Austro Control, inter alia, to carry out air traffic services on an exclusive basis, in accordance with Paragraph 8 of that law.
34      As regards the dispute in the main proceedings, that court thus states that the Republic of Austria can be held liable for the material damage suffered by Austrian Airlines, as a result of any culpable negligence on the part of Austro Control, only if the relevant provisions of EU law are intended, inter alia, to protect airspace users, within the meaning of Article 2(8) of Regulation No 549/2004, against such damage.
35      It is in the light of those preliminary observations that the question referred must be examined.
The question referred
36      By its single question, the referring court asks, in essence, whether Article 2(4) of Regulation No 549/2004 and Article 8 of Regulation No 550/2004, read in conjunction with the provisions of Regulation No 550/2004 relating to the provision of air navigation services and the charging schemes for those services, must be interpreted as meaning that all of those provisions are also intended to protect airspace users from the material damage caused by a culpable failure by the air traffic service provider to comply with its obligations under those provisions.
37      It should be pointed out as a preliminary point, first, that, under Article 1(1) of Regulation No 549/2004, that regulation establishes a harmonised regulatory framework for the creation of the ‘single European sky’, the objective of which is to enhance current air traffic safety standards, to contribute to the sustainable development of the air transport system and to improve the overall performance of air traffic management and air navigation services for general air traffic in Europe, with a view to meeting the requirements of all airspace users.
38      That provision also states that the single European sky is to comprise a coherent pan-European network of routes, network management and air traffic management systems based only on safety, efficiency and technical considerations, for the benefit of all ‘airspace users’, a concept which includes, in accordance with Article 2(8) of that regulation, operators of aircraft operated as general air traffic.
39      Second, in accordance with Article 1(1) of Regulation No 550/2004 and ‘within the scope of [Regulation No 549/2004]’, that regulation concerns the safe and efficient provision of air navigation services in the single European sky by laying down common requirements for that purpose. Chapter III of Regulation No 550/2004 also sets out, as a key component, a charging scheme for those services, including charges to airspace users.
40      Furthermore, it is apparent from Article 3(1) of Regulation No 549/2004 that the harmonised regulatory framework for the creation of the ‘single European sky’ also includes implementing rules adopted by the Commission on the basis of, inter alia, that regulation and Regulation No 550/2004. Those implementing rules include Implementing Regulation No 1035/2011.
41      That regulatory framework having been clarified, it must be stated, in the first place, that, under Article 2(4) of Regulation No 549/2004, the concept of ‘air navigation services’ includes air traffic services, expressly referred to in the question referred, as well as communication, navigation and surveillance services, meteorological services for air navigation and aeronautical information services.
42      Air traffic services form an integral part of ‘air traffic management’, which includes, under Article 2(10) of Regulation No 549/2004, all the functions, on board and on the ground, required to ensure the safe and efficient movement of aircraft during all phases of operations. Under paragraph 11 of that article, those services include air traffic control services, flight information services and alerting services, those three concepts being defined, in turn, in paragraphs 1, 23a and 23b of that article respectively.
43      ‘Air traffic control services’ are intended, first, to prevent collisions in the manoeuvring area between aircraft and obstructions and, second, to expedite and maintain an orderly flow of air traffic. ‘Flight information services’ provide advice and information useful for the safe and efficient conduct of flights. ‘Alerting services’ are services to notify relevant organisations regarding aircraft in need of search and rescue aid and to assist those organisations.
44      It follows from the foregoing that ‘air traffic services’, within the meaning of Article 2(11) of Regulation No 549/2004, are of fundamental importance for air traffic management not only as regards the safety and optimal operation of airspace, but also as regards airspace users whose activities depend on the proper performance of those services (see, to that effect, judgment of 2 June 2022, Skeyes, C‑353/20, EU:C:2022:423, paragraph 43).
45      As the Advocate General observed in point 39 of her Opinion, the provision of air navigation services, including air traffic services, serves not only the public interest in ensuring an efficient and safe single European sky, but also the interests and economic activity of airspace users, in particular air carriers.
46      In that regard, recital 7 of Regulation No 549/2004 states that airspace constitutes a limited resource, the optimum and efficient use of which will be possible only if the requirements of all users are taken into account.
47      In the second place, Article 8(1), (3) and (4) of Regulation No 550/2004 requires each Member State to designate an air traffic service provider and to define the rights and obligations of that provider, which must, as provided for in paragraph 4 of that article, comply with the common requirements for the provision of air navigation services listed in Article 6 of that regulation and be certified in accordance with Article 7 of that regulation.
48      Under Article 6, those common requirements are to cover, inter alia, technical and operational competence and suitability, quality of service, and liability and risk coverage. Under Article 7(1) and (3) of that regulation, the provision of air navigation services in the European Union is to be subject to certification by Member States, which is subject to the provider’s compliance with those common requirements. Under Article 7(7), if a national supervisory authority finds that the holder of a certificate no longer satisfies those common requirements, it is to take appropriate measures while ensuring continuity of services.
49      As stated in recital 4 of Regulation No 550/2004, the providers designated by Member States are under an obligation to provide air traffic services in such a way as to meet adequately the needs of airspace users and to regulate air traffic safely and efficiently, in a harmonised framework for the provision of air navigation services.
50      The Court has held that it is clear from recital 10 and from Article 1(1) and Article 7(1) and (7) of Regulation No 550/2004 that the latter is also intended to ensure continuity of the provision of all air navigation services in the single European sky (judgment of 2 June 2022, Skeyes, C‑353/20, EU:C:2022:423, paragraph 44), without which airspace users could not operate under adequate conditions.
51      Furthermore, Annex I to Implementing Regulation No 1035/2011 laying down common requirements for the provision of air navigation services and supplementing the harmonised regulatory framework for the creation of the ‘single European sky’, as recalled in paragraph 40 above, states that air navigation service providers are to be able to provide their services in a safe, efficient, continuous and sustainable manner consistent with any reasonable level of overall demand for a given airspace (point 1 of that annex), are to define a quality policy in order to meet the needs of different users as closely as possible (point 3.2 (a) of that annex) and are to have in place arrangements to cover their civil liabilities arising from applicable law (point 7 of that annex).
52      In the third place, Articles 14 to 16 of Regulation No 550/2004 govern the determination, imposition and enforcement of charges to airspace users for air navigation services provided to them. Under Article 14, that charging scheme is to contribute, inter alia, to the cost efficiency of providing air navigation services and to the efficiency of flights, while maintaining an optimum safety level.
53      Article 15(1) of that regulation provides that the charging scheme is to take into account the costs for air navigation services incurred by providers for the benefit of airspace users. Article 15(3)(f) states that charges are to encourage the safe, efficient, effective and sustainable provision of air navigation services with a
view to achieving a
high level of safety and cost-efficiency.
54      It follows from the foregoing that Regulations No 549/2004 and No 550/2004 and Implementing Regulation No 1035/2011 require air traffic service providers to meet adequately the needs of airspace users, while guaranteeing the safety, continuity, sustainability, effectiveness and cost efficiency of their services, on the understanding that those services are necessary for the activities of those users, who bear the economic cost thereof.
55      Accordingly, the Court held, in essence, in the judgment of 2 June 2022, Skeyes (C‑353/20, EU:C:2022:423, paragraphs 39 and 49), that the provisions of Regulations No 549/2004 and No 550/2004 are capable of conferring on airspace users rights which may be affected by the closure of airspace.
56      In the present case, it is apparent from the request for a preliminary ruling that the failure of the AFTN server managed by Austro Control, as the air traffic service provider designated by the Republic of Austria, led to a significant decrease in landing and take-off rates at Vienna-Schwechat airport, and, as a result, the cancellation of flights operated by Austrian Airlines, which illustrates the relationship of dependence, referred to in paragraph 44 above, between the provision of those services and the possibility for airspace users to operate.
57      It is for the national court, which alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law (judgments of 4 June 2013, ZZ, C‑300/11, EU:C:2013:363, paragraph 36, and of 29 July 2024, protectus, C‑185/23, EU:C:2024:657, paragraph 36), to determine whether, in the light of the Court’s answer to the question referred, the Republic of Austria may be held liable for the material damage suffered by Austrian Airlines as a result of any culpable negligence on the part of Austro Control.
58      In the light of all the foregoing considerations, the answer to the question referred is that Article 2(4) of Regulation No 549/2004 and Article 8 of Regulation No 550/2004, read in conjunction with the provisions of Regulation No 550/2004 relating to the provision of air navigation services and the charging schemes for those services, must be interpreted as meaning that all of those provisions are also intended to protect airspace users from the material damage caused by a culpable failure by the air traffic service provider to comply with its obligations under those provisions.
Costs
59      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Article 2(4) of Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation) and Article 8 of Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky (the service provision Regulation), as amended by Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009, read in conjunction with the provisions of Regulation No 550/2004 relating to the provision of air navigation services and the charging schemes for those services,
must be interpreted as meaning that all of those provisions are also intended to protect airspace users from the material damage caused by a culpable failure by the air traffic service provider to comply with its obligations under those provisions.
[Signatures]
*      Language of the case: German.