Case C-96/01 P: Appeal brought on 27 February 2001 by Galileo Company and Galileo International, LLC against the order dated 15 December 2000 of the Second Chamber of the Court of First Instance of the European Communities in case T-113/99 between Galileo Company and Galileo International, LLC, supported by Amadeus Global Travel Distribution SA, and Council of the European Union, supported by Commission of the European Communities
Date: 2001-05-05
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), air transport, carriage of passengers, reservation

C 134/8

EN

Official Journal of the European Communities

5.5.2001

account the impact of the reserved sector when setting its
charges for services in the competitive sector. It would
merely be required to comply with Akzo (2), that is to say,
to cover at least its variable costs.

The judgment does not explain how reserved rights
affected costs; nor does it indicate how that should have
been determined.

— Infringement of Article 88 EC

The judgment disregards the broad discretion attributed
to the Commission in relation to complex appraisals of
an economic nature. However, it is clear from Article 88
EC that the Commission must enjoy a broad discretion,
not only in order to assess whether State aid is compatible
with the common market, but also to classify a measure
as State aid when the form of State intervention under
investigation is complex.

Galileo International, LLC, established in Rosemount, Illinois,
United States of America, represented by Mr Richard Plender
QC, instructed by Ms Katherine Holmes and Mr Daniel Austin,
solicitors, of Richards Butler, with an address for service in
Luxembourg.

The Appellants seek the following orders from the Court of
Justice:

1.

That the Contested Order be set aside.

2.

That the plea of admissibility raised by the Council
and supported by the Commission as interveners be
dismissed.

— Infringement of Article 87 EC

3.

That the Application be declared admissible.

The judgment errs in holding that all advantages con-
ferred by the State constitute aid; on the contrary, only
the transfer of financial resources may be so classified.

The judgment has distorted the notion of normal market
conditions.

4.

5.

(1) OJ L 164 of 9.6.1998, p. 37.
(2) Case C-62/86 (1991) ECR I-3359.

That the case be referred back to the CFI so that the CFI
may determine the Application on the merits.

That the Council do pay the costs of this appeal and the
costs of determining the Council’s plea of admissibility,
including the costs of responding to the Commission’s
Statement of Intervention.

Appeal brought on 27 February 2001 by Galileo Company
and Galileo International, LLC against the order dated
15 December 2000 of the Second Chamber of the Court
of First Instance of the European Communities in case
T-113/99 (1) between Galileo Company and Galileo Inter-
national, LLC, supported by Amadeus Global Travel
Distribution SA, and Council of the European Union,
supported by Commission of the European Communities

(Case C-96/01 P)

(2001/C 134/12)

An appeal against the order dated 15 December 2000 of the
Second Chamber of the Court of First Instance of the European
Communities in case T-113/99 between Galileo Company and
Galileo International, LLC, supported by Amadeus Global
Travel Distribution SA, and Council of the European Union,
supported by Commission of the European Communities,
was brought before the Court of Justice of the European
Communities on 27 February 2001 by Galileo Company,
established in Windsor, Berkshire, United Kingdom, and

Pleas in law and main arguments

a)

In finding that
the contested measure concerns the
applicants in their objective capacity as ‘system’ vendor,
in the same way as any other system vendor, the CFI
erred in law in the following material respects:

i)

By failing to take into account and apply the
consistent case law of the Court of Justice that an
individual trader, that forms part of a group of
traders that are fixed and identifiable when the
contested measure is made, may nevertheless be
individually concerned by that measure. Such a
trader may be individually concerned to the extent
that the measure applies to undertakings engaged in
the relevant trade at the time when it was adopted,
and the measure fails to make transitional arrange-
ments to protect them against substantial detriment.

ii)

By failing to appreciate that the fact that a measure
may be of legislative nature applying to a category
of traders in general does not prevent it in certain
circumstances from affecting some of the market
participants concerned individualy.

5.5.2001

EN

Official Journal of the European Communities

C 134/9

iii) By assimilating the position of the existing four
global CRS operators with all other operators active
on the relevant market such as system vendors,
airlines or subscribers and in so doing failed to apply
the case law of the Court of Justice and, in particular
the Court’s decision in Bock and Piraiki-Patraiki.

b)

In finding that exceptional economic circumstances do
not mean that the Appellants are individually concerned
by the contested measure the Court of First Instance erred
as a matter of law:

i)

ii)

By failing to apply the principles laid down in the
judgments of the Court of First Instance in Codorniu
v. Council and Extrament Industrie v. Council and
subsequently applied by the Court of First Instance
and the Court of Justice and/or failing to distinguish
those cases adequately or at all.

By failing to take account of the decision of the
Court of First Instance in Case T-60/96, Merck and
others.

(1) OJ C 226, 7.8.1999, p. 34.

Action brought on 27 February 2001 by the Commission
the United
of

the European Communities against
Kingdom of Great Britain and Northern Ireland

(Case C-98/01)

(2001/C 134/13)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 27 February 2001 by the
Commission of the European Communities, represented by
Mr Frank Benyon and Ms Maria Patakia, acting as agents, with
an address for service in Luxembourg.

The Applicant claims that the Court should:

a)

declare that the provisions setting a limitation on interests
in voting shares in the BAA plc company (Article 40 of
the Articles of Association), as well as the authorisation
procedure on the disposal of assets of the company or
control in subsidiaries and winding-up (Article 10 of the
Articles of Association) are incompatible with Articles 43
and 56 of the EC Treaty;

Pleas in law and main arguments

Article 40 of BAA’s Articles, which prevents any person from
controlling more than 15 % of the company, restricts portfolio
investment, and restricts direct investment and, by the same
token, establishment: such restrictions fall under Articles 56
and 43 of the EC Treaty. While the restriction is not explicitly
of a discriminatory nature, such a restriction, liable to hinder
the exercise of these freedoms, must be justified by ‘imperative
requirements in the general interest’ and be necessary and
appropriate for these requirements.

The UK authorities have failed to demonstrate the imperative
requirements of general interest which are to be protected by
the rights attached to the Special share and by the 15 % equity
limit and, thus, a fortiori, their proportionality, and it therefore
must be concluded that the restrictions on the free movement
of capital and on establishment created thereby are in violation
of the obligations of the Member State under Articles 43 and
56 of the Treaty.

A breach of the Treaty may occur upon the introduction by a
Member State of restrictions on establishment or capital
movements, by whatever means.
In relation to BAA the
measures introduced by mechanisms of company law were
introduced by the State in its capacity as public authority and
are clearly intended to remain thus since Article 10(1) of BAA’s
Articles only allows the Special share to be transferred to ‘one
of Her Majesty’s Secretaries of State, another Minister of the
Crown or any other person acting on behalf of the Crown’.
Consequently, and in order in particular to uphold the
uniformity and supremacy of Community law, the adoption
by a Member State of the mechanisms of private company law
to introduce restrictions on Treaty freedoms can in no way
avoid the examination of the compatibility of such restrictions
with the Treaty.

After such examination the Commission has reached the
conclusion that the restrictions contained in Articles 10 and
40 of the Articles of Association of BAA are incompatible
with the provisions of Articles 43 and 56 of the Treaty on the
freedoms of establishment and capital movements.

Reference for a preliminary ruling made by the House of
Lords by order of that court of 8 February 2001, in the
case of 1) Consorzio del Prosciutto Di Parma 2) Salumi-
ficio S. Rita S.P.A. against 1) Asda Stores Limited 2) Hy-
grade Foods Limited

(Case C-108/01)

(2001/C 134/14)

b)

order the United Kingdom to pay the costs.

Reference has been made to the Court of Justice of the
European Communities by an order of the House of Lords, of