Keywords

Summary



Keywords

1. International agreements - Agreement between the Community and non-Member States on the establishment of a European Common Aviation Area - Rules in the agreement identical to the corresponding Community rules - Court to ascertain whether there are adequate measures for the purpose of preserving the autonomy of the Community legal order - Scope

2. International agreements - Agreement between the Community and non-Member States on the establishment of a European Common Aviation Area - Agreement not affecting the essential character of the powers of the Community and its institutions - Compatibility of the provisions of the agreement with the EC Treaty

3. International agreements - Agreement between the Community and non-Member States on the establishment of a European Common Aviation Area - Mechanisms relating to the uniform interpretation of the rules of the agreement and to the resolution of disputes - Mechanisms not having the effect of binding the Community and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of Community law replicated by the agreement - Compatibility with the EC Treaty

Summary

1. The effect of the policies reflected in the proposed agreement on the establishment of a European Common Aviation Area (the ECAA Agreement) is, first, to bring about the juxtaposition within a single geographical area (that of the ECAA) of rules of Community law and rules replicating them, which will not be applied or interpreted systematically by the same authorities or bodies. That might give rise to differences prejudicial to the operation of the ECAA Agreement. Another consequence of those policies is that the Commission is made responsible for applying a number of rules in that agreement outside the Community, thereby creating specific relations between the Community and the States Parties.

In that context, with a large number of the rules of the ECAA Agreement being essentially rules of Community law, it is incumbent on the Court to ascertain whether the agreement before it includes adequate measures, at least comparable to those laid down by the Agreement on the European Economic Area, to guarantee that neither the endeavour to ensure uniform interpretation of those rules nor the new institutional links established by the ECAA Agreement between the Community and the States Parties affect the autonomy of the Community legal order. It is particularly important that the mechanisms in the agreement should prevent the Community, in the event of a dispute with a State Party, from being bound by a particular interpretation of the rules of Community law referred to in the agreement. Thus, the agreement must make it possible to anticipate and prevent any such undermining of the objective enshrined in Article 220 EC that Community law should be interpreted uniformly and of the Court's function of reviewing the legality of the acts of the Community institutions.

Preservation of the autonomy of the Community legal order requires therefore, first, that the essential character of the powers of the Community and its institutions as conceived in the Treaty remain unaltered. Second, it requires that the procedures for ensuring uniform interpretation of the rules of the ECAA Agreement and for resolving disputes will not have the effect of binding the Community and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of Community law referred to in that agreement.

(see paras 10-13)

2. The proposed agreement on the establishment of a European Common Aviation Area (the ECAA Agreement) does not affect the essential character of the powers of the Community and its institutions to such an extent that it must be declared to be incompatible with the Treaty.

First, the ECAA Agreement will not affect the allocation of powers between the Community and the Member States. The Member States will not be parties to the ECAA Agreement. Thus, there is no risk of the Joint Committee set up by Article 25 of the proposed agreement or a court seised of a dispute concerning the interpretation of certain provisions of the agreement, applying or interpreting Contracting Party in such a way as to define the respective powers of the Member States and the Community. Furthermore, the fact that the Member States are not parties to the ECAA Agreement ensures that disputes between the Member States, or between those States and the Community institutions, concerning interpretation of the rules of Community law applicable to air transport will continue to be dealt with exclusively by the machinery provided for by the Treaty. The procedure for dispute resolution by the Joint Committee set up by Article 27 of the proposed agreement concerns only disputes between the States Parties or disputes between those States, or one of them, and the Community. Consequently, it does not conflict with Article 292 EC, under which Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein.

Second, although the proposed ECAA Agreement affects the powers of the Community institutions, it does not alter the essential character of those powers and, accordingly, does not undermine the autonomy of the Community legal order.

So far as the Commission is concerned, the provisions of the proposed agreement are directly inspired by the provisions of the Treaty defining its responsibilities in the field of competition with regard to the Member States. The fact that the basic rules of the ECAA Agreement to be implemented by the Commission together with the States Parties are identical to those of Community law, and the choice of the single-pillar structure, must also be regarded as guarantees that the essential character of the powers of the Community institutions will remain unchanged.

As regards the Court, the indispensable conditions for safeguarding the essential character of its powers are satisfied by the provisions of the proposed ECAA Agreement. First, Article 17(3) of the proposed agreement makes the Court responsible for ruling on [a]ll questions concerning the legality of decisions taken by Community institutions under this Agreement. Thus, the Court's exclusive task of reviewing the legality of acts of the Community institutions, whether the latter are acting under the Treaty or under another international instrument, conferred on it by inter alia Articles 230 EC and 234 EC, is not called in question. Second, in every case where the proposed agreement confers powers on the Court, the binding nature of the latter's decisions is safeguarded.

(see paras 14-17, 21-25)

3. The mechanisms for ensuring uniform interpretation of the rules of the agreement on the establishment of a European Common Aviation Area (the ECAA Agreement) and for resolving disputes will not have the effect of binding the Community and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of Community law incorporated in the agreement.

First, the proposed agreement provides that the rules of the ECAA Agreement will, in accordance with the intention of the Contracting Parties, retain the general characteristics of Community law. Second, the procedures for preliminary references provided for in Article 23(2) of, and Protocol IV to, the proposed agreement, which give the States Parties the power to authorise their courts to make references to the Court, may be considered to be compatible with the Treaty. Those provisions are certainly not intended to enable courts of States Parties to bring matters before the Court as of right. However, the Court has already acknowledged, as regards the equivalent provisions of the Agreement on the European Economic Area (the EEA Agreement), that States may be allowed to decide whether or not to permit their courts and tribunals to make referrals to the Court. The Court has also found that courts or tribunals other than those of Member States could refer questions to it for a preliminary ruling, provided that the answers given by it were binding on the referring courts. That is certainly the case in the proposed ECAA Agreement, since referrals made to the Court under Article 23(2) thereof, the procedures for which are laid down in the various options provided for in Protocol IV, will enable it, in accordance with the terms of the Protocol, to give binding rulings on the interpretation and validity of the rules of the ECAA Agreement.

Third, the mechanisms in Article 23(1) of the proposed agreement relating to the interpretation of provisions of the ECAA Agreement which are identical in substance to provisions of Community law ensure that the case-law of the Court will be adequately taken into account by the Contracting Parties. Although recognition of the binding authority of the decisions of the Commission and the case-law of the Court is restricted by that provision to decisions and rulings given prior to the date of signature of the ECAA Agreement, that fact does not, of itself, give rise to incompatibility with the Treaty, since adequate procedures are put in place to ensure that the Court's later case-law will not be affected, thus guaranteeing uniform interpretation of the rules of Community law.

Fourth, no objection can be taken to Article 23(3) of the proposed agreement. It governs cases in which a court of a Contracting Party, giving judgment at last instance, is not able to make a reference to the Court, and provides for any judgment of such a court to be sent to the Joint Committee, which then acts so as to preserve the homogeneous interpretation of the ECAA Agreement.

Lastly, the mechanism for resolving disputes established by Article 27 of the proposed agreement, a procedure to which Article 23(3) refers, is based on the procedures provided for by the EEA Agreement, which the Court found to be compatible with the Treaty, and is presented in the proposed agreement in a more restrictive form.

(see paras 29-34, 36, 42, 44-45)