Keywords

Summary



Keywords

1 . PRELIMINARY RULINGS - JURISDICTION OF THE COURT - INACCURACIES IN THE DESCRIPTION OF THE NATIONAL PROVISIONS GIVEN IN THE ORDER FOR REFERENCE - EXISTENCE OF INTERNATIONAL AGREEMENTS LIABLE TO INFLUENCE THE APPRAISAL , FROM THE POINT OF VIEW OF COMMUNITY LAW , OF THE NATIONAL RULES - NOT MATERIAL

( EEC TREATY , ART . 177 )

2 . TRANSPORT - AIR TRANSPORT - APPLICATION OF THE GENERAL RULES IN THE TREATY - COMPETITION RULES - INCLUDED

( EEC TREATY , ART . 3 ( F ), ARTS 74 , 84 AND 85 TO 90 )

3 . COMPETITION - COMMUNITY RULES - APPLICATION - COMPETENCE OF THE MEMBER STATES - AUTHORITIES OF THE MEMBER STATES - CONCEPT

( EEC TREATY , ART . 88 )

4 . COMPETITION - COMMUNITY RULES - IMPLEMENTING PROVISIONS ADOPTED PURSUANT TO ARTICLE 87 OF THE EEC TREATY - NONE - JURISDICTION OF THE NATIONAL COURTS - JURISDICTION CONDITIONAL ON A RULING BY THE MEMBER STATES OR THE COMMISSION THAT AN INFRINGEMENT HAS BEEN COMMITTED

( EEC TREATY , ARTS 85 TO 89 )

5 . COMPETITION - COMMUNITY RULES - OBLIGATIONS OF THE MEMBER STATES

( EEC TREATY , ARTS 85 AND 86 )

6 . COMPETITION - COMMUNITY RULES - OBLIGATIONS OF THE MEMBER STATES - APPROVAL OF AIR TARIFFS - INCOMPATIBILITY - CONDITIONS

( EEC TREATY , ART . 3 ( F ), ARTS 5 , 85 , 87 , 88 AND 89 ( 2 ))

Summary

1 . SINCE THE PRELIMINARY RULING PROCEDURE IS NOT CONCERNED WITH THE INTERPRETATION OF NATIONAL LAWS OR REGULATIONS , THE FACT THAT THE DESCRIPTION OF THE RELEVANT NATIONAL PROVISIONS GIVEN IN THE JUDGMENT REQUESTING A PRELIMINARY RULING IS NOT WHOLLY ACCURATE DOES NOT HAVE THE EFFECT OF DENYING THE COURT ' S JURISDICTION TO REPLY TO THE QUESTION REFERRED TO IT BY THE NATIONAL COURT .

THE EXISTENCE OF INTERNATIONAL AGREEMENTS THAT MAY HAVE IMPLICATIONS FOR THE APPRAISAL , FROM THE POINT OF VIEW OF COMMUNITY LAW , OF THE NATIONAL PROVISIONS WHICH THE NATIONAL COURT IS CALLED UPON TO APPLY IS NOT A FACTOR SUCH AS TO PRECLUDE THE COURT ' S JURISDICTION UNDER ARTICLE 177 OF THE EEC TREATY TO INTERPRET THE RELEVANT PROVISIONS OF COMMUNITY LAW .

2 . IT IS CLEAR FROM THE WORDING OF ARTICLE 74 THAT THE OBJECTIVES OF THE TREATY , INCLUDING THAT SET OUT IN ARTICLE 3 ( F ), NAMELY THE INSTITUTION OF A SYSTEM ENSURING THAT COMPETITION IN THE COMMON MARKET IS NOT DISTORTED , ARE EQUALLY APPLICABLE TO THE TRANSPORT SECTOR .

IN THE ABSENCE OF ANY PROVISION IN THE TREATY TO THE CONTRARY , IT MUST BE CONCLUDED THAT THE RULES IN THE TREATY ON COMPETITION , IN PARTICULAR ARTICLES 85 TO 90 , ARE APPLICABLE TO TRANSPORT .

ARTICLE 84 OF THE TREATY CANNOT BE INTERPRETED AS EXCLUDING AIR TRANSPORT FROM THE GENERAL RULES OF THE TREATY , INCLUDING THE COMPETITION RULES .

3 . THE TERM ' AUTHORITIES IN MEMBER STATES ' IN ARTICLE 88 OF THE TREATY REFERS TO EITHER THE ADMINISTRATIVE AUTHORITIES ENTRUSTED , IN MOST MEMBER STATES , WITH THE TASK OF APPLYING DOMESTIC LEGISLATION ON COMPE TITION SUBJECT TO THE REVIEW OF LEGALITY CARRIED OUT BY THE COMPETENT COURTS , OR ELSE THE COURTS TO WHICH , IN OTHER MEMBER STATES , THAT TASK HAS BEEN ESPECIALLY ENTRUSTED .

CONSTRUED IN THAT WAY , THE TERM DOES NOT INCLUDE THE CRIMINAL COURTS WHOSE TASK IS TO PUNISH BREACHES OF THE LAW .

4 . ARTICLES 88 AND 89 OF THE TREATY ARE NOT OF SUCH A NATURE AS TO ENSURE A COMPLETE AND CONSISTENT APPLICATION OF ARTICLE 85 SO THAT THEIR MERE EXISTENCE WOULD PERMIT THE ASSUMPTION THAT ARTICLE 85 HAD BEEN FULLY EFFECTIVE FROM THE DATE OF ENTRY INTO FORCE OF THE TREATY .

CONSEQUENTLY , IN THE ABSENCE OF A DECISION TAKEN UNDER ARTICLE 88 BY THE COMPETENT NATIONAL AUTHORITIES RULING THAT A GIVEN CONCERTED ACTION ON TARIFFS TAKEN BY AIRLINES IS PROHIBITED BY ARTICLE 85 ( 1 ) AND CANNOT BE EXEMPTED FROM THAT PROHIBITION PURSUANT TO ARTICLE 85 ( 3 ), OR IN THE ABSENCE OF A DECISION BY THE COMMISSION UNDER ARTICLE 89 ( 2 ) RECORDING THAT SUCH A CONCERTED PRACTICE CONSTITUTES AN INFRINGEMENT OF ARTICLE 85 ( 1 ), A NATIONAL COURT THAT CANNOT BE REGARDED AS A NATIONAL AUTHORITY WITHIN THE MEANING OF ARTICLE 88 DOES NOT , IN PARTICULAR FOR REASONS RELATING TO THE GENERAL PRINCIPLE OF LEGAL CERTAINTY , HAVE JURISDICTION ITSELF TO HOLD THAT THE CONCERTED ACTION IN QUESTION IS INCOMPATIBLE WITH ARTICLE 85 ( 1 ).

HOWEVER , WHERE THE COMPETENT NATIONAL OR COMMUNITY AUTHORITIES HAVE RULED THAT CERTAIN ACTION CONSTITUTES SUCH AN INFRINGEMENT OF ARTICLE 85 ( 1 ), THE NATIONAL COURTS MUST DRAW ALL THE NECESSARY CONCLUSIONS THEREFROM AND IN PARTICULAR CONCLUDE THAT THAT ACTION IS AUTOMATICALLY VOID PURSUANT TO ARTICLE 85 ( 2 ).

5 . WHILE IT IS TRUE THAT ARTICLES 85 AND 86 OF THE TREATY CONCERN THE CONDUCT OF UNDERTAKINGS AND NOT LAWS OR REGULATIONS OF THE MEMBER STATES , NONE THE LESS THE TREATY IMPOSES A DUTY ON MEMBER STATES NOT TO ADOPT OR MAINTAIN IN FORCE ANY MEASURE WHICH WOULD DEPRIVE THOSE PROVISIONS OF THEIR EFFECTIVENESS . SUCH WOULD BE THE CASE , IN PARTICULAR , IF A MEMBER STATE WERE TO REQUIRE OR FAVOUR THE ADOPTION OF AGREEMENTS , DECISIONS OR CONCERTED PRACTICES CONTRARY TO ARTICLE 85 OR TO REINFORCE THE EFFECTS THEREOF .

6 . IT IS CONTRARY TO THE OBLIGATIONS OF THE MEMBER STATES UNDER ARTICLE 5 OF THE EEC TREATY , IN CONJUNCTION WITH ARTICLE 3 ( F ) AND ARTICLE 85 , IN PARTICULAR PARAGRAPH ( 1 ), OF THE EEC TREATY , TO APPROVE AIR TARIFFS AND THUS TO REINFORCE THE EFFECTS THEREOF , WHERE , IN THE ABSENCE OF ANY RULES ADOPTED BY THE COUNCIL IN PURSUANCE OF ARTICLE 87 , IT HAS BEEN FOUND IN ACCORDANCE WITH THE FORMS AND PROCEDURE LAID DOWN IN ARTICLE 88 OR ARTICLE 89 ( 2 ) THAT THOSE TARIFFS ARE THE RESULT OF AN AGREEMENT , A DECISION BY AN ASSOCIATION OF UNDERTAKINGS , OR A CONCERTED PRACTICE CONTRARY TO ARTICLE 85 .