98/523/EC: Commission Decision of 22 July 1998 on a procedure relating to the application of Council Regulation (EEC) No 2408/92 (Case VII/AMA/10/97 - Access to Karlstad airport) (notified under document number C(1998) 2009) (Only the Swedish text is authentic) (Text with EEA relevance)
Date: 1998-07-22
Institutions: European Commission
Subjects: Sweden, air transport, airport, environmental protection, intra-EU transport, noise protection

20. 8. 98

EN

Official Journal of the European Communities

L 233/25

II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 22 July 1998

on a procedure relating to the application of Council Regulation (EEC)
No 2408/92

(Case VII/AMA/10/97 (cid:190) Access to Karlstad airport)

(notified under document number C(1998) 2009)

(Only the Swedish text is authentic)

(Text with EEA relevance)

(98/523/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EEC) No 2408/92
of 23 July 1992 on access for Community air carriers to
intra-Community air routes (1), as amended by the Act of
Accession of Austria, Finland and Sweden and in partic-
ular Article 8(3) thereof,

After consulting the Advisory Committee established
under Article 11 of that Regulation,

Whereas:

law and,

authorities of 15 November 1994 to prohibit the
operation of certain aircraft at the new Karlstad
airport, alleging that the decision is contrary to
in particular, Council
Community
Directive 92/14/EEC of 2 March 1992 on the
limitation of the operation of aeroplanes covered
by Part II, Chapter 2, Volume 1 of Annex 16 to the
Convention on International Civil Aviation, second
edition (1988) (2), as amended by Directive 98/20/
EC (3). Such aeroplanes are hereinafter referred to as
‘Chapter 2 aircraft'. SAS argues that the Swedish
decision negatively affects its operations on the
routes Karlstad-Stockholm and Karlstad-Copen-
hagen, and requests the Commission to initiate
proceedings against Sweden with a view to ending
the alleged infringement of Community law.

BACKGROUND

(1)

(2)

This Decision is concerned with certain noise-
related restrictions affecting air carriers’ access to
the new Karlstad airport in Sweden.

By letter of 23 January 1997, Scandinavian Airlines
complaint with the
System (SAS)
Commission against the decision of the Swedish

lodged a

(3)

The new Karlstad airport was officially opened for
traffic on 7 September 1997. It is located near
Mellerudstorp in a sparcely populated area some 12
kilometres north-east of the city centre. At the
same time, the old Karlstad airport, which was
located three kilometres south of the city centre,
was closed down, notably for safety and environ-
mental reasons.

(1) OJ L 240, 24. 8. 1992, p. 8.

(2) OJ L 76, 23. 3. 1992, p. 21.
(3) OJ L 107, 7. 4. 1998, p. 4.

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(4)

(5)

(6)

Under the Swedish Environmental Protection Act,
the construction and operation of the new Karlstad
airport was subject to an environmental author-
isation, which was granted by the National
Licensing Board for Environmental Protection on
15 November 1994 and subsequently published in
six Swedish daily newspapers. That Decision
became legally effective on 29 June 1995. It covers
a traffic volume of up to 30 000 movements per
types of aircraft,
year with a mix of different
including MD80, SF 340, Saab 340, Saab 200,
Cessna 500 and Beech 1900, and includes the
following conditions intended to limit the level of
aircraft noise around the airport:

(cid:190) scheduled air services may not be operated with
aircraft which do not comply with the require-
ments of Part II, Chapter 3, Volume 1 of Annex
16 to the Convention on International Civil
Aviation (hereinafter referred to as ‘Chapter 3
aircraft'),

(cid:190) a maximum of 260 non-scheduled air services
per year may be operated with aircraft not
complying with the requirements of the above-
mentioned Chapter 3 of the Convention on
International Civil Aviation until the end of the
year 2001,

(cid:190) take-offs between 22.00 and 07.00 hours are
only allowed with Chapter 3 aircraft; however,
in exceptional cases, the airport may grant a
waiver from this requirement.

The Decision also includes other elements which
are designed to improve the noise situation around
the new Karlstad airport without, however, making
any distinction between Chapter 2 and Chapter 3
aircraft. Thus, authorised noise levels may in total
not exceed the levels indicated in the airport’s
application for the authorisation for the year 2000,
and at least 90 % of all traffic at an altitude lower
than 750 metres must be operated within specific
geographical limits indicated in two annexes to the
authorisation. Moreover, the homes of permanent
residents in the vicinity of the airport who are
repeatedly exposed to noise levels above 80 dB(A)
are to benefit
from noise abatement measures
ensuring that the noise levels do not exceed 45
dB(A), provided that the implementation of such
measures is economically feasible.

It is the first of those conditions to which SAS
objected in its complaint of January 1997. In this
context, it should be noted that SAS is presently
the only air carrier providing scheduled air services
to Karlstad (42 return flights per week from Stock-
holm and 20 return flights per week from Copen-
hagen). All those services are, in accordance with
the Decision of 15 November 1994, presently oper-
ated with Chapter 3 aircraft.

(7)

(8)

(9)

At two meetings on 17 March and 18 June 1997,
the Commission discussed the issues raised in the
complaint of SAS with the Swedish authorities and
asked them for further information on the situation
at the new Karlstad airport. The Swedish author-
ities provided the Commission with the requested
information by letters of 17 June and 29 July 1997,
indicating that
they intended to maintain the
Decision of 15 November 1994, which they
considered compatible with Community law.

By letter of 20 August 1997,
the Commission
formally transmitted a copy of the complaint of
SAS to the Swedish authorities and summarised the
reasons why it had doubts about the compatibility
of
the Decision of 15 November 1994 with
Directive 92/14/EEC and with Regulation (EEC)
No 2408/92, in particular Article 8(2) thereof. As
far as the application of that latter provision is
concerned, the letter explicitly recalled that the
Commission has
the decision-making powers
contained in Article 8(3), and invited the Swedish
authorities to provide the Commission with all
information necessary for a final assessment of the
case.

The Swedish authorities replied to the Commission
by letter of 2 October 1997, providing full copies of
the Swedish Environmental Protection Act and the
Decision of 15 November 1994, which has been
the letter set out,
summarised above. Moreover,
inter alia, the following arguments in support of
the legality of that Decision:

(cid:190) the construction of a new airport in Karlstad
was motivated primarily by environmental
considerations, since there was wide agreement
in Sweden that the old airport had to be closed
because of its proximity to the city centre,

(cid:190) the Decision prohibiting the operation of
Chapter 2 aircraft at the new Karlstad airport
was taken on 15 November 1994 and, thus, at a
time when Sweden had not yet joined the Euro-
pean Union,

(cid:190) the exclusion of Chapter 2 aircraft was a condi-
tion for the construction and operation of the
new Karlstad airport. If that condition were not
honoured, the airport would have to be closed
down altogether. Such a condition cannot be
considered to constitute regulation of air traffic
in accordance with Regulation (EEC) No 2408/
92. Moreover, the Decision of 15 November
1994 provides for a limited exemption from the
exclusion of Chapter 2 aircraft in favour of non-
scheduled air services,

(cid:190) local or regional measures excluding Chapter 2
aircraft from an airport do not breach Directive
92/14/EEC, or Regulation (EEC) No 2408/92.
the new Karlstad
Moreover,

in the case of

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Official Journal of the European Communities

L 233/27

the exclusion of Chapter 2 aircraft
airport,
meets the requirements set out in Article 9 of
the Regulation.

(10)

In a letter of 13 October 1997, SAS contested the
arguments put forward by the Swedish authorities
in their reply to the Commission and, in particular,
pointed out that, as a result of the Decision of 15
November 1994,
it was obliged to reduce its
capacity at the new Karlstad airport and to redeploy
its Chapter 2 aircraft to other Community airports.

(11) On 3 November 1997, a further meeting took place
between the Swedish authorities and the Commis-
sion to discuss the case.

LEGAL ASSESSMENT

(12)

Regulation (EEC) No 2408/92 lays down the rules
on access for Community air carriers to intra-
Community air routes. Article 3(1) lays down the
general principle that:

‘subject to this Regulation, Community air carriers
shall be permitted by
State(s)
concerned to exercise traffic rights on routes within
the Community'.

the Member

(13) Article 2(f) defines the term ‘traffic right' as ‘the
right of an air carrier to carry passengers, cargo
service between two
and/or mail on an air
Community airports'. It follows from Article 1 that,
in general, that right covers both scheduled and
non-scheduled air services. The Commission there-
fore takes the view that, subject to any limitations
imposed by or in accordance with that Regulation,
Community air carriers are free to operate sched-
uled and non-scheduled air services between the
new Karlstad airport and other airports in the
Community.

(14) One of the provisions of the Regulation to which
Article 3(1) refers is Article 8(2) which provides
that:

‘the exercise of traffic rights shall be subject to
published Community, national, regional or local
operational rules relating to safety, the protection of
the environment and the allocation of slots'.

(15)

The Decision of 15 November 1994, which is the
subject of the complaint of SAS, was taken by the
National Licensing Board for Environmental
Protection under
Swedish Environmental
Protection Act. The Decision was intended to
address,
explicitly
acknowledged in their submissions to the Commis-
sion, environmental issues raised by the construc-
tion and operation of the new Karlstad airport.

the Swedish authorities

the

as

(16) Moreover,

the Decision of 15 November 1994
requires all scheduled and the vast majority of non-

scheduled air services to and from the new Karlstad
airport
to be operated with Chapter 3 aircraft.
Exemptions can be granted for no more than 260
non-scheduled air services per year, but not beyond
the year 2001. The Decision is therefore liable to
affect actual and potential exercise of traffic rights
by Community air carriers to and from the airport
under Article 3(1) of Regulation (EEC) No 2408/92.
An actual effect has already been shown on the
operations of SAS on the routes Karlstad-Stock-
holm and Karlstad-Copenhagen which, according
to the information provided by the air carrier, had
to be reduced and carried out with aircraft other
than the ones initially attributed to those routes as
a result of the decision. Hence, the Commission
cannot accept the argument of the Swedish author-
ities that, since the Decision of 15 November 1994
was addressed to the airport, it is not a measure
regulating the exercise of traffic rights within the
meaning of that Regulation. In fact, the Swedish
authorities acknowledged themselves
their
Decision affected not only the construction but
also the operation of the new Karlstad airport.

that

(17) Consequently, the Decision of the Swedish author-
ities of 15 November 1994 constitutes an opera-
tional rule relating to the protection of the environ-
ment for the purposes of Article 8(2) of the Regula-
tion (EEC) No 2408/92.

(18) As regards operational

rules falling within the
scope of Article 8(2) of
the
that Regulation,
Commission is vested with the powers conferred
upon it by paragraph 3 of that Article, the first
sentence of which reads as follows:

the Commission shall

‘At the request of a Member State or on its own
initative
the
application of paragraphs 1 and 2 and, within one
month of receipt of a request and after consulting
the Committee referred to in Article 11, decide
whether the Member State may continue to apply
the measure.'

examine

(19)

In view of the complaint of SAS, the Commission
considers it necessary to make use of those powers
to examine the Decision of the Swedish authorities
of 15 November 1994 and to decide whether
Sweden may continue to apply that Decision in so
far as it restricts the operation at the new Karlstad
airport of Chapter 2 aircraft, as opposed to Chapter
3 aircraft. The Commission does so on its own
initiative, as explicitly provided for in Article 8(3)
of Regulation (EEC) No 2408/92, and its exam-
ination is not in any way limited to the complaint
and the situation of SAS.

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Official Journal of the European Communities

20. 8. 98

(20)

to

prior

Sweden’s

The fact that the Decision was adopted by the
Swedish authorities on 15 November 1994 and,
accession
thus,
the
to
Community does not affect
the Commission’s
powers to examine the Decision. Member States are
in fact obliged to comply with Community law
their accession to the
from the first day of
Community, with the exception of
those areas
where they benefit from any derogations by virtue
of their respective Acts of Accession. Sweden has
not, however, been granted any such derogation
which could possibly be applicable in the case in
hand.

(21) Moreover, it should be recalled that the Swedish
authorities were already bound by the rules of
Regulation (EEC) No 2408/92 when they adopted
their Decision of 15 November 1994 since, by
virtue of Decision No 7/94 of
the EEA Joint
Committee of 21 March 1994 amending Protocol
47 and certain Annexes to the EEA Agreement (1),
that Regulation and Directive 92/14/EEC were
included in the scope of the EEA Agreement, to
which Sweden was a contracting party prior to its
accession to the Community, with effect from 1
July 1994 (2).

(22) Article 8(2) of Regulation (EEC) No 2408/92
requires the publication of the operational rules to
which the exercise of traffic rights granted under
Article 3(1)
is subject. The Swedish authorities
published their Decision of 15 November 1994 in
six Swedish daily newspapers. Since Article 8(2) of
the said Regulation does not prescribe a particular
method for the publication of operational rules
adopted by the authorities of Member States, the
Commission can accept the one chosen by the
Swedish authorities in the case at hand.

authorities

(23) Moreover, the Commission, when using the powers
conferred upon it by Article 8(3) of Regulation
(EEC) No 2408/92, must ensure that any measures
taken by Member States’
are not
contrary to other provisions of Community law.
The Commission must therefore, in the context of
its examination of operational rules under that
Article, verify that those rules are compatible with
the specific provisions of the Treaty, notably Title
IV on the common transport policy, including any
secondary legislation adopted under that Title. In
this context, it should be recalled that the Court of
Justice
the European Communitites has
followed the same reasoning in relation to the State
aid procedure provided for in Articles 92 and 93 of
the Treaty, stating that it is clear from the general
scheme of the Treaty that that procedure must

of

(1) OJ L 160, 28. 6. 1994, p. 1.
(2) OJ C 208, 28. 7. 1994, p. 7.

never produce a result which is contrary to any
specific provisions of the Treaty (3).

In addition, as the Commission has already in-
dicated in relation to national measures adopted
under Article 8(1) of Regulation (EEC) No 2408/92
(see,
in particular, Commission Decision 95/
259/EC of 14 March 1995 (cid:190) French traffic
distribution rules for the airport system of Paris (4),
any restrictions adopted under that provision must
comply with the general principles governing the
freedom to provide services as spelled out in the
case-law of the Court of Justice (5). Those principles
go beyond the mere prohibition of any discrim-
ination on grounds of nationality. Even if national
measures restricting the freedom to provide services
apply without distinction to national providers of
services and to those of other Member States, they
are still unacceptable if they are not warranted by
mandatory requirements in the public interest, or if
the same result can be obtained by less restrictive
rules (the proportionality principle). The Commis-
sion considers that the same reasoning must be
applied, mutatis mutandis, to any operational rules
applied by Member States’ authorities under Article
8(2) of that Regulation.

The Decision of
the Swedish authorities of 15
November 1994 must therefore also be reviewed in
the light of those considerations.

In the case at hand, it is necessary to examine
whether the Swedish authorities’ Decision of 15
November 1994 is compatible with their obliga-
tions under Directive 92/14/EEC.

(24)

(25)

(26)

(27) Article 2 of that Directive reads as follows:

‘1. Member States shall ensure that, as from 1
April 1995, civil subsonic jet aeroplanes fitted with
engines having a by-pass ratio of less than two
cannot operate at airports situated in their territory
unless granted noise certification either:

(a)

to the standards specified in Part II, Chapter 3,
Volume 1 of Annex 16 to the Convention on
second edition
International Civil Aviation,
(1988); or

(b) to the standards specified in Part II, Chapter 2,
Volume 1 of Annex 16 to the aforesaid
Convention, provided that they were first issued
an individual certificate of airworthiness less
than 25 years previously.

(3) Case 73/79 Commission v. Italy (1980) ECR 1533 and Case

C-225/91 Matra v. Commission (1993) ECR I-3206.

(4) OJ L 162, 13. 7. 1995, p. 25.
(5) Cases C-288/89 Mediawet

S(cid:132)ger v. Dennemeyer (1991) ECR 4221.

(1991) ECR 4007 and C-76/90

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2. Member States shall ensure that, as from 1
April 2002, all civil subsonic jet areoplanes oper-
ating from airports
territory
comply with the provisions of paragraph 1(a).

situated in their

(31)

It should further be noted in this context that with
regard to Austria only, a derogation was accorded
from the rules of the Directive in the EEA Agree-
ment in the following terms (1):

(28)

(29)

(30)

3.
The territory referred to in paragraphs 1 and 2
shall not include the overseas departments referred
to in Article 227(2) of the Treaty.'

The Directive then lists a limited number of
exemptions from the provisions of Article 2(1),
allowing the continued operation at Community
airports of certain aeroplanes
from developing
nations (Article 3), aeroplanes which will soon be
converted into or replaced by Chapter 3 aircraft
(Article 5(1) and Article 6) and aeroplanes of
historic interest (Article 5(2)). Moreover, Member
States may grant temporary exemptions from the
provisions of Article 2(1) of the Directive on certain
well defined economic grounds (Articles 4 and 7)
and in other exceptional cases (Article 8). Finally,
Article 9 of the Directive requires any Member
State to recognise the exemptions granted by
another Member State in respect of aeroplanes on
the register of the latter.

for

the gradual
By laying down precise rules
phasing-out of Chapter 2 aircraft within the
Community over the years 1995 to 2002, Article 2
of the Directive is a measure of total harmonisation
which does not allow Member States to require an
to
accelerated withdrawal of
continue,
explicitly
mentioned in the Directive, to authorise operations
at their airports with aircraft which, under that
Article, should have been withdrawn.

those aircraft or
exceptions

outside

the

In fact, Article 2 is intended to strike a balance
between the need for a further reduction of aircraft
noise and the legitimate economic interests of the
operators and, at the same time, to ensure that
competition within the Community’s internal air
transport market is not distorted by the introduc-
regimes by
tion of different noise abatement
different Member States. Those objectives are expli-
citly referred to in the sixth and seventh recitals in
the preamble to the Directive, which state that
. . . should be introduced on a
‘common rules.
reasonable
to ensure a harmonised
approach throughout the Community', that such a
harmonised approach ‘is particularly important in
view of the recent trend towards progressive liber-
alization of European air traffic' and that ‘aeroplane
noise should be further
taking into
account environmental factors, technical feasibility
and economic consequences'

(emphasis added).

time-scale

reduced,

‘Council Directive 92/14/EEC of 2 March 1992 on
the limitation of
the operation of aeroplanes
covered by Part II, Chapter 2, Volume I of Annex
16 to the Convention on International Civil Avia-
tion, second edition (1988) (OJ L 76, 23.3.1992, p.
21), as corrected by OJ L 168, 23.6.1992, p. 30.

the
The provisions of
purposes of the present Agreement, be read with
the following adaptation:

the Directive shall,

for

stringent protective
Austria may apply more
national legislation existing at the date of the entry
into force of the EEA Agreement, concerning the
limitation of the operation of aeroplanes covered
by Part II, Chapter 2, Volume I of Annex 16 to the
Convention on International Civil Aviation, second
edition (1988) at Austrian airports until 1 April
2002.'

the Directive also ensures

(32) Moreover, by harmonising the rules for the gradual
phasing-out of Chapter 2 aircraft within the
Community,
that a
Member State does not ‘export' any possible noise
problems around its airports to other Member
States and that such Chapter 2 aircraft are not
concentrated at a limited number of airports in the
Community.

(33)

The recent discussions on the revision of
the
Directive support this conclusion. Thus, by virtue
of Directive 98/20/EC,
the Council added the
following paragraph to Article 2 of Directive 92/
14/EEC, which would not have been necessary if
that Article, in its present version, established only
minimum rules and allowed Member States to
require an accelerated withdrawal of Chapter 2
aircraft:

‘4.
Before the date referred to in paragraph 2, the
operation of civil subsonic jet aeroplanes which do
not comply with the provision of paragraph 1(a)
may be restricted or excluded at the airports of
Berlin Tegel and Berlin Tempelhof.'

(34) Moreover, it should be recalled that Directive 92/
14/EEC was adopted by the Council as part of the
common transport policy under Article 84(2) of the
Treaty, which does not contain a provision such as
that
in Title XVI (Environment), Article 130t,
which indeed allows Member States to maintain or
introduce more stringent protective measures.

(1) OJ L 160, 28. 6. 1994, p. 145.

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20. 8. 98

(39)

It follows from the preceding considerations that,
since that Directive is a measure of total harmon-
isation, Member States must allow Chapter 2
aircraft which were first issued an individual certifi-
cate of airworthiness less than 25 years ago to
operate at
their airports until 31 March 2002.
Therefore, it is not compatible with the Directive
for a Member State not to permit such aircraft to
operate at one or more of its airports.

(35)

(36)

The Swedish authorities’ Decision of 15 November
1994 provides that all scheduled and the vast
majority of non-scheduled air services to and from
the new Karlstad airport must be operated with
Chapter 3 aircraft. Thus, operators of Chapter 2
aircraft are denied access to Karlstad airport for
scheduled flights and are seriously restricted for
non-scheduled flights, which is not compatible
with Directive 92/14/EEC.

(37) Moreover,

the

that

even if

infringement of

the Commission notes

the new Karlstad airport

that
Directive through those restrictions on Chapter 2
aircraft could be disregarded,
those restrictions
would still be contrary to the principles of necessity
and proportionality, as outlined in paragraph 24. In
fact,
is located in a
sparsely populated area away from the city centre
and accounts for a rather low traffic volume. More-
over,
the Swedish
authorities’ Decision of 15 November 1994
includes, apart from the provisions on Chapter 2
aircraft which have been discussed above, several
additional elements which are designed to improve
the noise situation around the new Karlstad airport,
including an overall noise quota, operational
restrictions for take-offs and landings as well as
noise abatement measures for homes of permanent
residents. The Swedish authorities have not demon-
strated to the Commission that, taking into account
the location and traffic volume of the airport, those
additional measures are insufficient to achieve an
adequate level of protection against aircraft noise in
its vicinity.

(38) However, although Directive 92/14/EEC as a
measure of total harmonisation requires Member
States to permit those aircraft complying with the
requirements of Article 2(1)(b) thereof to operate
until 1 April 2002, it does not lay down detailed
rules which such permission, and consequently any
restrictions thereon, must respect. Member States
may therefore apply certain restrictive operational
measures provided that such measures respect the
provisions and procedures of the Regulation (EEC)
No 2408/92 and, in the present case, the principles
in accordance with which Article 8(2) thereof must
be interpreted, as recalled in paragraphs 23 and 24.

In this context, the Commission notes that the
Swedish authorities’ Decision of 15 November
1994 further introduces a night curfew for Chapter
2 aircraft between 22.00 and 07.00 hours for the
new Karlstad airport. Such a night curfew can be
considered a restrictive operational measure within
the meaning set out above and,
is not
excluded by the Directive. Moreover, such a night
curfew can, in so far as it is intended to protect the
population during the normal sleeping hours from
the greater noise emissions of Chapter 2 aircraft, as
compared with Chapter 3 aircraft, be regarded as
complying with the principles of necessity and
proportionality, which have been outlined in para-
graph 24.

thus,

(40)

In conclusion, the Decision of the Swedish author-
ities of 15 November 1994 infringes Article 2 of
Directive 92/14/EEC and, thus, also Article 8(2) of
Regulation (EEC) No 2408/92 in so far as it
restricts, outside the night curfew (22.00 to 07.00
hours), the exercise of traffic rights on air routes
between the new Karlstad airport and other airports
in the Community with Chapter 2 aircraft.

(41)

Finally, it is necessary to address the argument of
the Swedish authorities that their Decision of 15
November 1994 can be justified under Article 9 of
the Regulation (EEC) No 2408/92.

(42) On this point, it should be noted that Article 9(3)
of that Regulation provides that a Member State
may only implement an action adopted under para-
graph 1 of that Article if no other Member State
concerned nor the Commission has contested that
action within one month of receipt of the noti-
fication thereof from the first Member State. Such
notification to the other Member States and to the
Commission must take place at least three months
prior to the entry into force of the proposed action.
The Swedish authorities did not officially notify
their Decision to the Commission three months
before its entry into force, nor in fact at any time.
Therefore, Article 9 does not apply to the Swedish
authorities’ Decision of 15 November 1994.

(43) Moreover, even if the Swedish authorities had noti-
fied their Decision to the Commission prior to its
entry into force, thus enabling the provisions of
Article 9 to be applied, and without any need to
examine in depth any other considerations, no
approval could have been given thereunder since
the Swedish Decision does not have a limited dura-
tion not exceeding three years, as required by the
second indent of Article 9(2). Furthermore, any
measures taken by Member States under Article 9
must, according to paragraph 2 thereof, not be

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Official Journal of the European Communities

L 233/31

‘appropriate

more restrictive than necessary in order to relieve
the problems (the proportionality principle), and,
under paragraph 4, be
and in
conformity with this Regulation and not in any
other way contrary to Community law'. It has
already been demonstrated in relation to Article 8
of Regulation (EEC) No 2408/92 that the Decision
of the Swedish authorities of 15 November 1994
breaches the principle of proportionality as well as
the rules of Directive 92/14/EEC.

(44) Having regard to the foregoing considerations, the
Commission concludes that the Decision of the
Swedish authorities of 15 November 1994 is
contrary to Article 8(2) of Regulation (EEC) No
2408/92 in so far as it restricts, outside the night
curfew (22.00 to 07.00 hours), the exercise of traffic
rights on air routes between the new Karlstad
airport and other airports in the Community with
aircraft not complying with the requirements of
Part II, Chapter 3, Volume 1 of Annex 16 to the
Convention on International Civil Aviation. The
Swedish authorities may not therefore continue to
their
the
apply
Decision. However,
is necessary to allow the
Swedish authorities a period in order to adapt the
legal regime governing access to the new Karlstad
airport
the present
Decision. That period should not extend beyond
the next scheduling season, ending on 27 March
1999, so that the airlines have legal certainty when
planning for the subsequent summer season 1999.

corresponding provisions of

consequences of

to the

it

(45)

Since, as stated in paragraph 21, Regulation (EEC)
No 2408/92 was included, with effect from 1 July

in the scope of the EEA Agreement, the
1994,
Commission’s Decision cannot be confined to the
situation within the Community, but must cover
the whole of the European Economic Area,

HAS ADOPTED THIS DECISION:

Article 1

Sweden shall cease to apply the Decision of its National
Licensing Board for Environmental Protection of 15
November 1994 in so far as that Decision restricts,
outside the night curfew (22.00 to 07.00 hours), the exer-
cise of traffic rights on air routes between the new Karl-
stad airport and other airports in the European Economic
Area with aircraft not complying with the requirements of
Part II, Chapter 3, Volume 1 of Annex 16 to the Conven-
tion on International Civil Aviation.

Article 2

Sweden shall comply with this Decision by 27 March
1999 at the latest.

Article 3

This Decision is addressed to the Kingdom of Sweden.

Done at Brussels, 22 July 1998.

For the Commission

Neil KINNOCK

Member of the Commission