Judgment of the Court (Sixth Chamber) 9 July 2002 in Case C-181/00 (Reference for a preliminary ruling from the Supremo Tribunal Administrativo): Flightline Ltd v Secretário de Estado dos Transportes e Communicações, Transportes Aéreos Portugueses SA (TAP) (Articles 3(2) and 4(1)(a) and (d) of Regulation (EEC) No 2408/92 — Imposition of public service obligations on scheduled air services serving a peripheral region — Compatibility with Member States' power to restrict cabotage until 1 April 1997 — Interpretation of Article 1(e) of Decision 94/698/EC)
Date: 2002-09-28
Institutions: Court of Justice
Subjects: Portugal, air cabotage, interpretation of the law, public service, restriction on competition

28.9.2002

EN

Official Journal of the European Communities

C 233/7

Abad): Application for a declaration that, by failing to take the
measures necessary in order to ensure, as regards the three
incineration furnaces installed at Mazo and Barlovento on the
island of La Palma (Spain), the application of:

— Article 2 of Council Directive 89/369/EEC of 8 June
1989 on the prevention of air pollution from new
municipal waste incineration plants (OJ 1989 L 163,
p. 32), inasmuch as those furnaces are operating without
the required prior authorisation:

— Article 6 of that directive, inasmuch as, with regard to

those furnaces, the competent authorities

— have not given prior approval for the sampling and
measurement procedures and have not determined
the location of the measurement points concerned;

— have not laid down any measurement programme;

— Article 7 of that directive, inasmuch as those furnaces are
not equipped with auxiliary burners, which would make it
possible to maintain the minimum combustion tempera-
ture of 850C, particularly during start-up and shut-down
operations,

the Kingdom of Spain has failed to fulfil its obligations under
that directive;

2. Dismisses the remainder of the action;

— have not taken periodic measurements in respect of

the parameters prescribed by that article;

3. Orders the Commission of the European Communities to pay
one third of the costs and the Kingdom of Spain two thirds of
the costs.

— have not given prior approval for the sampling and
measurement procedures and have not determined
the location of the measurement points concerned;

(1) OJ C 192 of 8.7.2000.

— have not laid down any measurement programme;

— Article 7 of that directive, inasmuch as those furnaces are
not equipped with auxiliary burners, which would make
it possible to maintain the minimum combustion tem-
perature of 850oC, particularly during start-up and shut-
down operations,

the Kingdom of Spain has failed to fulfil its obligations under
that directive, the Court (Fifth Chamber), composed of: P. Jann,
President of the Chamber, D.A.O. Edward and C.W.A. Timmer-
mans (Rapporteur), Judges; P. Léger, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 11 July
2002, in which it:

1. Declares that, by failing to adopt the measures necessary in
order to ensure, as regards the three incineration furnaces
installed at Mazo and Barlovento on the island of La Palma,
the application of:

JUDGMENT OF THE COURT

(Sixth Chamber)

9 July 2002

in Case C-181/00 (Reference for a preliminary ruling from
the Supremo Tribunal Administrativo): Flightline Ltd v
Secretário de Estado dos Transportes e Communicações,
Transportes Aéreos Portugueses SA (TAP) (1)

(Articles 3(2) and 4(1)(a) and (d) of Regulation (EEC)
No 2408/92 — Imposition of public service obligations
on scheduled air services serving a peripheral region —
Compatibility with Member States’ power to restrict cabo-
tage until 1 April 1997 — Interpretation of Article 1(e) of
Decision 94/698/EC)

(2002/C 233/11)

(Language of the case: Portuguese)

— Article 6 of Council Directive 89/369/EEC of 8 June
1989 on the prevention of air pollution from new
municipal waste incineration plants, inasmuch as, with
regard to those furnaces, the competent authorities

(Provisional translation; the definitive translation will be published
in the European Court Reports)

— have not taken periodic measurements in respect of

the parameters prescribed by that article;

In Case C-181/00: Reference to the Court under Article 234
EC by the Supremo Tribunal Administrativo (Portugal) for a

C 233/8

EN

Official Journal of the European Communities

28.9.2002

preliminary ruling in the proceedings pending before that
court between Flightline Ltd and Secretário de Estado dos
Transportes e Communicações, Transportes Aéreos Portugue-
ses SA (TAP), on the interpretation of Articles 3(2) and 4(1)(a)
and (d) of Council Regulation (EEC) No 2408/92 of 23 July
1992 on access for Community air carriers to intra-Com-
munity air routes (OJ 1992 L 240, p. 8) and Article 1(e) of
Commission Decision 94/698/EC of 6 July 1994 concerning
increase in capital, credit guarantees and tax exemption in
favour of TAP (Transportes Aéreos Portugueses) (OJ 1994
L 279, p. 29), the Court (Sixth Chamber), composed of:
F. Macken (Rapporteur), President of the Chamber, C. Gul-
mann, R. Schintgen, V. Skouris and J. N. Cunha Rodríguez,
Judges; S. Alber, Advocate General; H. A. Rühl, Principal
Administrator, for the Registrar, has given a judgment on
9 July 2002, in which it has ruled:

1.

2.

The exercise by a Member State of the rights and powers laid
down in Article 4 of Council Regulation (EEC) No 2408/92
of 23 July 1992 on access for Community air carriers to intra-
Community air routes does not presuppose or mean that that
Member State must waive its right under Article 3(2) of that
regulation to restrict competition until 1 April 1997 in
cabotage services within its territory.

In a public tender procedure organised in 1995 for the provision
of scheduled air services on a route subject to public service
obligations imposed on that route under Article 4 of Regulation
No 2408/92, a Member State was entitled to require air
carriers licensed by another Member State which submitted bids
to meet the conditions laid down in Article 3(2) of that
regulation, provided that the invitation to tender did not
continue to have effect beyond 1 April 1997.

3. Article 1(e) of Commission Decision 94/698/EC of 6 July
1994 concerning increase in capital, credit guarantees and tax
exemption in favour of TAP, which makes approval of the aid
for which it provides subject to the condition that the Portuguese
Republic honour its undertaking to apply Article 4 of Regu-
lation No 2408/92 to the autonomous regions of Madeira
and the Azores with effect from 1 January 1996 at the latest
and publish the public service obligations for the routes in
question, does not preclude that Member State from exercising
its right under Article 3(2) of that regulation.

( 1) OJ C 192 of 8.7.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

11 July 2002

in Case C-210/00 (Reference for a preliminary ruling from
the Bundesfinanzhof): Käserei Champignon Hofmeister
GmbH & Co. KG v Hauptzollamt Hamburg-Jonas (1)

(Agriculture — Export refunds — False declaration —
Penalty — Validity of point (a) of the first subparagraph of
Article 11(1) of Regulation (EEC) No 3665/87, as amended
by Regulation (EC) No 2945/94 — Concept of ‘force
majeure’)

(2002/C 233/12)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(a) of

In Case C-210/00: Reference to the Court under Article 234
EC, by the Bundesfinanzhof (Germany) for a preliminary ruling
in the proceedings pending before that court between Käserei
Champignon Hofmeister GmbH & Co. KG and Hauptzollamt
the first
Hamburg-Jonas, on the validity of point
subparagraph of Article 11(1) of Regulation (EEC) No 3665/
87 of 27 November 1987 laying down common detailed rules
for the application of
the system of export refunds on
agricultural products (OJ 1987 L 351, p. 1), as amended by
Commission Regulation (EC) No 2945/94 of 2 December
1994 (OJ 1994 L 310, p. 57), and on the interpretation of the
concept of ‘force majeure’
in the first indent of the third
subparagraph of Article 11(1) of the same regulation, the
Court (Fifth Chamber), composed of: D. A. O. Edward, acting
for the President of the Fifth Chamber, A. La Pergola and
C. W. A. Timmermans (Rapporteur), Judges; C. Stix-Hackl,
Advocate General; H. A. Rühl, Principal Administrator, for the
Registrar has given a judgment on 11 July 2002, in which it
has ruled:

1.

Examination of the first question referred has not revealed any
factors capable of calling into question the validity of point (a)
of the first subparagraph of Article 11(1) of Commission
Regulation (EEC) No 3665/87 of 27 November 1987 laying
down common detailed rules for the application of the system
of export refunds on agricultural products, as amended by
Commission Regulation (EC) No 2945/94 of 2 December
1994, in so far as it penalises an exporter who, without fault
on his part, applies for an export refund which exceeds that to
which he is entitled.

2. On a proper interpretation of the first indent of the third
subparagraph of Article 11(1) of Regulation No 3665/87, as
amended by Regulation No 2945/94, there is no force majeure