2004/12/EC: Commission Decision of 5 December 2003 on a procedure relating to the application of Article 18(2), first sentence, of the Agreement between the European Community and the Swiss Confederation on air transport and Council Regulation (EEC) No 2408/92 (Case TREN/AMA/11/03 — German measures relating to the approaches to Zurich airport) (notified under document number C(2003) 4472)
Date: 2003-12-05
Institutions: European Commission
Subjects: Germany, Switzerland, air transport, airport, carrier, complaint to the Commission, market access, transport capacity

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 5 December 2003

on a procedure relating to the application of Article 18(2), first sentence, of the Agreement
between the European Community and the Swiss Confederation on air transport and Council
Regulation (EEC) No 2408/92

(Case TREN/AMA/11/03 — German measures relating to the approaches to Zurich airport)

(notified under document number C(2003) 4472)

(Only the German text is authentic)

(2004/12/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Agreement between the European Com-
munity and the Swiss Confederation on air transport (1) of 21
June 1999, and in particular Articles 15 and 18(2) thereof,

Having regard to Council Regulation (EEC) No 2408/92 of 23
July 1992 on access for Community air carriers to intra-Com-
munity air routes (2), and in particular Article 8(3) thereof,

(2)

After consulting the Advisory Committee established by Regu-
lation (EEC) No 2408/92,

Whereas:

BACKGROUND

I

(1)

Zurich airport is situated at Kloten, north-east of the city
of Zurich and about 15 km south-east of the border
between Switzerland and Germany. Zurich airport has
three runways: one west-east (10/28), one north-south
(16/34) crossing the west-east runway, and one north-
west-south-east (14/32) which is independent of the two
others. These runways have traditionally been used
according to the following scheme: most take-offs during
the day take place from the west-east runway towards
the west, while in the early morning and late evening
most take-offs use the north-south runway in the north
direction. Incoming flight overwhelmingly use the north-
west-south-east runway coming from the north-east.

(1) OJ L 114, 30.4.2002, p. 73.
(2) OJ L 240, 24.8.1992, p. 8.

Given the proximity to the German border, all flights
landing in Zurich from the north or north-west must
use German airspace while landing.

The use of German airspace for approaching and leaving
Zurich airport had been governed by a bilateral agree-
ment between Switzerland and Germany of 17
September 1984 which was terminated by Germany on
22 March 2000 with effect
from 31 May 2001,
following implementation problems. Germany and Swit-
zerland subsequently signed a new agreement on 18
October 2001, which has however not been ratified. In
Switzerland, the Nationalrat voted against ratification on
19 June 2002 while the Ständerat sent it back to the
In
transport
Germany, the Bundestag approved the agreement on 17
May 2002, but the Bundesrat opposed it on 12 July
2002. It has not been taken up since.

commission on 12 December 2002.

(3)

On 15 January 2003,
the German Federal Aviation
Authority published the 213th regulation for the imple-
mentation of German air traffic regulations establishing
procedures for instrument-guided landings and take-offs
at Zurich airport. This regulation sets out a number of
limitations for the approach to Zurich airport as of 18
January 2003. In particular:

— it imposes minimum waiting levels of 6 000 feet
above the waiting areas SAFFA and EKRIT, and
13 000 feet above the waiting area RILAX,

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— it sets out nine landing procedures above German
territory. The six ILS landing procedures may not be
used between 22.00 and 6.00 on workdays, and
between 20.00 and 9.00 on weekends and public
holidays. When using the three VOR/DME landing
procedures during these hours, planes must not
descend below 10 000 feet above German territory.
Exemptions from these rules are granted if external
conditions enable only landing approaches from the
north,

— it imposes the use of five routes Z 1, 2, 3, 4, and 5
for planes taking off
from Zurich airport when
entering German territory, except for take-offs from
runways 32 and 34 which technically cannot reach
these coordinates.

(4)

On 4 April 2003 the German Federal Aviation Authority
published the first regulation amending the 213th regu-
lation. The amendment had the following effects as of
17 April 2003:

— it increases the minimum waiting levels (see recital 3,
first indent) above SAFFRA and EKRIT to 12 000
feet between 21.00 and 7.00 on weekdays, and
between 20.00 and 9.00 on weekends and public
holidays.
increases the minimum waiting level
above RILAX to 18 000 feet at the corresponding
times,

It

— it extends the limitations for the six ILS and the three
VOR/DME landing procedures (see recital 3, second
indent) from the time period 22.00 to 6.00 to the
time period 21.00 to 7.00 on weekdays and
increases the minimum height for the three VOR/
DME procedures during these hours to 12 000 feet,

— it bans the special take-off procedures from runways
32 and 34 (see recital 3, third indent) between 21.00
and 7.00 on weekdays and between 20.00 and 9.00
on weekends and public holidays and imposes a
minimum flight height of 10 000 feet when entering
German territory.

(9)

(5)

(6)

The amending regulation also specifies the weather
conditions when external conditions are deemed only to
enable approaches from the north, thus allowing exemp-
tions from the rules under recital 4, second indent.
However, this provision was scheduled to come into
force only on 10 July 2003.

The effect of the German measures is to prevent, under
normal weather conditions, the overflight in low altitude
over the German territory close to the Swiss border
between 21.00 and 7.00 on weekdays and between
20.00 and 9.00 on weekends and public holidays, thus
reducing the noise to which the local population is
exposed. As a result, the two landing approaches from
the north previously used as the main approaches by
flights landing at Zurich airport, and take-offs to the

north previously used for take-offs late at night and early
in the morning, are no longer possible during these
hours. The level of noise over German territory had been
the main subject of the various negotiations and agree-
ments of the last 20 years specified under recital 2.

(7)

On 10 June 2003, the Swiss Confederation submitted to
the Commission a request for it to take a decision with
the effect that:

— Germany may not continue to apply the 213th regu-
lation for the implementation of German air traffic
regulations establishing procedures for instrument-
guided landings and take-offs at Zurich airport as
amended by the first amending regulation of 4 April
2003,

— Germany must suspend the application of the 213th
regulation for the implementation of German air
traffic regulations establishing procedures for instru-
ment-guided landings and take-offs at Zurich airport
until the Commission decision requested above.

(8)

On 26 June 2003, the German and Swiss authorities
changed the factual situation on which the complaint
was based by reaching an agreement on the following
points:

— Switzerland ensures that the following instrument
landing approaches can be operated on runway 34:

— procedure VOR/DME by 30 October 2003,

— procedure LZ/DME by 30 April 2004,

— procedure ILS CAT1 by 31 October 2004.

Germany agreed to suspend implementation of
the
provisions of the first regulation amending the 213th
regulation which were to come into force on 10 July
(see recital 5) until 30 October 2003. Further modifica-
tions of the agreement are possible when it reviews
weather conditions for allowing landing on runways 14
and 16 eight weeks before the dates under recital 8. It
will also abolish the waiting procedures EKRIT and
SAFFA; Switzerland will create corresponding waiting
procedures by February 2005.

(10) On 20 June 2003,

the Commission requested the
German authorities to comment upon the Swiss request.
By letter of the same day, the Commission also requested
the Swiss authorities to provide additional information.
In response, Germany notified the Commission by letter
of 30 June 2003 of the agreement they had reached with
the Swiss authorities, dated 26 June 2003, with the
effect of postponing some of the measures provided for
in the 213th regulation. It therefore considered the Swiss
complaint void and expected the procedure of the Euro-
pean Commission to be terminated. On 27 June 2003
the Swiss authorities equally notified the Commission of
the above agreement. However, they maintained that the
complaint was in no way affected by the agreement.

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(11)

By letter of 4 July, Switzerland announced that it was
collecting the additional
information requested by the
Commission as well as evaluating the impact of the
agreement of 26 June 2003 on its request for interim
measures. On 14 July 2003 the Commission asked the
Swiss authorities to pinpoint possible alterations to the
complaint due to the fact that the measures with which
Switzerland had justified the
interim
measures had been postponed until 30 October. On 24
the Swiss authorities provided additional
July 2003,
information in response to the Commission request of
20 June. They also pointed out that they wished to
maintain the request for interim measures. The Commis-
sion requested further complementary information by
letter of 12 August 2003, which was made available by
Switzerland by letter of 17 September, registered on 24
September.

request

for

(12) On 16 July 2003 the Commission wrote to the German
authorities, informing them that Switzerland wished to
maintain the complaint, and renewing the request for
comments upon the Swiss allegations. By letter of 28
August the German authorities submitted its comments
on the Swiss allegations. On 6 October they submitted
comments reacting to the Swiss letter of 17 September
and notified the second amending regulation to the
213th implementation regulation.

(13) A statement of objections was sent to the Swiss and
German authorities for comments on 14 October 2003.
Germany submitted its comments on the overall analysis
on 20 October and maintained a reservation as to the
applicability of Regulation (EEC) No 2408/92. Switzer-
land responded on 21 October with comments to the
statement of objections as well as comments to the
German observations of 28 August.

II

(14)

In support of their complaint to the Commission against
the German rules,
the Swiss authorities rely on the
following arguments:

A. The 213th implementing regulation infringes

Regulation (EEC) No 2408/92

(a) The German rule reduces operating capacity at Zurich

airport, affecting traffic rights

According to the Swiss authorities, the maximum capa-
city at Zurich airport using landing approaches from the
north is 68 movements per hour (36 planned landings,
and/or 44 take-offs). Due to the German operational
rules, Zurich airport is forced to make aircraft approach
from the east on runway 28 during no-go hours.
Because there is no precision instrument approach
procedure available for
the VOR/DME
procedure is used for incoming aircraft. In addition, the
runway has no fast exits. Theoretically, the maximum
landing capacity is approximately 28 per hour for these

this runway,

reasons, but in practice it is less because runway 28 is
suitable for most wide-bodied aircraft to land only under
optimum conditions; mostly, however,
it is too short.
The Swiss authorities believe that Zurich airport is no
longer able to guarantee that the carriers will be able to
exercise their traffic rights because its capacity is severely
restricted during the German operational rules. Instead
of 39 landings (36 planned landings) per hour, it can
only handle some 20 to, at best, 28, which represents a
substantial reduction in capacity. A figure of 39 would
be necessary for full and complete operation. In addition,
take-off capacity suffers, which leads to appreciable
delays.

limited upgrading of the
In the medium-to-long term,
landing approaches from the south and east are possible.
These measures cannot be implemented at short notice,
however, and can not fully substitute the landings from
the north. There,
ILS category 3 approaches (‘blind
approaches’) are possible on runway 14. The area to the
south is however densely developed and full of obstacles,
and the land rises to heights of up to 700 metres at a
distance of 7 km from the airport. Only an approach
angle of 3,3° is possible. Therefore, runway 34 can only
be equipped with ILS category 1, meaning that aircraft
can only land if the horizontal (ground) visibility is at
least 550 metres and the vertical visibility (cloud base) is
at least 60 metres/200 ft. Unless and until fast exits are
built, its maximum capacity will average some 30 to 32
landings per hour. Runway 28 from the east, which
currently has a capacity of 28 landings/hour (see above),
could be equipped with an ILS, but the capacity would
still only increase to a maximum of approximately 30
landings per hour. Having aircraft land on runway 28 or
34 would always decrease the take-off capacity by some
six movements per hour.
It is not certain that it is
possible to install an ILS category 3 system for aircraft
approaching from the south-east on runway 32, because
there are obstacles in the way and aircraft can only
approach at an angle of 3,3°. In all cases, however, capa-
city remains reduced, thus affecting traffic rights.

for

In the immediate future, an extreme case would have
occurred if the German rules planned for 10 July 2003
had come into force at that time, because they make
erroneous assumptions about the technical installations
at Zurich airport. Since this date, the weather conditions
under which Germany would be prepared to grant
approaches over German
exceptional permits
airspace during the restricted hours cover only a part of
the weather conditions under which landings from the
south, south-east and east are not feasible. As a result, if
horizontal visibility is more than 1 800 metres, but less
than 4 000 metres, or if vertical visibility is more than
700 ft, but less than 1 200 ft, aircraft cannot land at all
at Zurich airport during the operational rules. Under
certain weather conditions, therefore, the airport would
have to be closed from 21.00 to 7.00 or from 20.00 to
9.00, clearly affecting traffic rights.

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(b) The German restriction increases airport operating costs,

therefore airport fees, affecting traffic rights

The Swiss authorities maintain that an operation scheme
that alternates between approaches from the north,
south and east would necessitate considerable expendi-
ture for additional staff, infrastructure and staff training.
For
the airport a total CHF 65 million would be
required, 10 million of which has already been spent.
The air traffic control company would have to invest
CHF 15 million and increase its operational spending by
CHF 2 to 3 million per year. As a consequence, airlines
would have to pay higher airport fees and hence be
affected in the exercise of their traffic rights.

(c) The German rules are discriminatory

Switzerland argues that the German measures are doubly
discriminatory. Firstly, because no comparable German
airport is subject to night-time restrictions as lengthy as
those provided for in the 213th regulation. Secondly,
because Swiss International Air Lines, as the main user
of Zurich airport, is affected more than other carriers by
these measures and is thus put at a disadvantage as
compared to its competitors, which represents an
indirect discrimination.

(d) The protection of the environment can not provide a justi-

fication for the German measures

Switzerland reckons that the interests of the citizens in
the German areas in question are already adequately
respected. The Swiss air traffic infrastructure regulation
provides for night flight regulation, which only permits
very low-noise aircraft to fly between the hours of 22.00
and 6.00. On top of this, for an intercontinental airport,
Zurich has some of the strictest night flying rules in the
whole of Europe. The night-time flying ban imposed by
Zurich airport in 1972 essentially provides that there are
to be no flights between the hours of midnight and
5.30. Moreover,
in Switzerland more than 150 000
people are subjected to continuous noise levels such as
those that are recorded during the day in Germany in
certain parts of Hohentengen, the municipality that is
most affected, namely 50 to 56 dB. Added to which
there are more than 70 000 people living in Switzerland
who are subjected to much higher noise levels than
those that prevail in southern Germany.

The German measures only reduce noise annoyance over
Germany, but increase it by a larger amount over Swit-
zerland, because the population density in the new
landing paths is higher and villages are closer to Zurich
airport than the German villages protected, so that the
airplanes overfly them at a lower altitude, producing
more noise. As a result, the overall level of noise annoy-
ance is increased, not decreased.

B. The 213th implementing regulation infringes the
Agreement of 21 June 1999 on air transport
between the European Community and the Swiss
Confederation, Article 17 of which states that:

‘The Contracting Parties shall take all appropriate
measures, whether general or particular, to ensure
fulfilment of
this
Agreement and shall refrain from any measures
which would jeopardise attainment of the objectives
of this Agreement.’

the obligations arising out of

this disposition
According to the Swiss authorities,
loyal cooperation which
creates an obligation for
Germany has
infringed by adopting the disputed
measures without taking into due account the rights and
interests of Switzerland. Furthermore,
the German
measures are being enforced with unnecessary haste,
which means that Zurich airport does not have sufficient
time to make the necessary adjustments (see point (a)
above).

III

(15)

The German authorities advance essentially the following
arguments against the Swiss request:

A. The Commission is not competent to take a deci-

sion on the 213th implementing regulation

(a) Regulation (EEC) No 2408/92 is not applicable to the

Swiss complaint

The liberalisation of European air services in the late
1980s and early 1990s was based on the Chicago
Convention of 1944, which confirmed the sovereignty
of States over their airspace. This Convention lists eight
‘freedoms’. Only the economic freedoms (third to eighth
freedoms) have been dealt with by Community law. The
technical
freedoms (overflight and landing for non-
commercial purposes) are therefore only subject to the
Chicago Convention.

in a competitive way,

Regulation (EEC) No 2408/92 is part of
the third
package of the liberalisation of air services in Europe.
The objective of this process, and therefore of Regulation
(EEC) No 2408/92, was to allow air service providers
flight
freely to use available infrastructures (airports,
paths)
to the rules
provided for in the regulations. The regulations do not
deal with the infrastructures, they assume their existence.
Instead, infrastructure provision remains unregulated at
European level. Just as the choice of where to build an
airport remains a national competence, so does the
choice of where overflight should take place. Even the
creation of the single European sky, which is not yet in
force, will respect sovereignty in airspace management.

subject

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Therefore, not only does the Commission have no
competence in the matter, but as a consequence of the
sovereignty over one's airspace no State can be requested
by another to make specific parts of its airspace avail-
able, as Switzerland's complaint is doing. In any case,
Regulation (EEC) No 2408/92 does not apply to flights
to and from third countries, which are those most
concerned, according to Switzerland, by the impact of
the 213th implementing regulation.

(b) The Commission is not competent to settle disputes under
the Agreement between Switzerland and the Community

In so far as the Swiss allege a contravention of the
freedom to provide services in conjunction with Article
15 of the Agreement between Switzerland and the Com-
munity, the freedom to provide transport services exists
in relation to Switzerland only in so far as specifically
based on Community legislation and transferred into the
Community-Swiss Agreement. However, the competence
to settle disputes over the extent of the provisions in the
Agreement rests with the Joint Committee established by
the Agreement, and not with the European Commission.

B. The German rules are neither discriminatory nor

disproportionate

(a) The German measures are not discriminatory

The 213th implementing regulation is applicable to all
air services, regardless of nationality or identity of the
carrier. Hence,
there is no discrimination. As far as
indirect discrimination is alleged, the purpose of this
criterion is to avoid circumventing the non-discrimina-
tion principle by using secondary features to discrimi-
nate in a hidden way. It does not imply that any national
measure with a negative impact on undertakings from
other Member States constitutes discrimination. In the
case at hand, indirect discrimination would have been
present if the limitations applied only to carriers with
their hub at Zurich airport. This is not the case.

tion of Zurich airport are marginal (not even 1 % of the
employees have German nationality), the noise pollution
in Germany caused by the fact that virtually all landings
and all early-morning and late-evening take-offs take
place over German territory is completely dispropor-
tionate.

Switzerland

and Germany without

The preferred way to solve the problem would be by
mutual agreement. The long history of negotiations
between
any
improvement of the situation, but with a further dete-
rioration of the noise pollution in the affected German
areas, is proof that Germany has endeavoured to find a
consensual solution. However, this proved to be impos-
sible. The latest attempt at such a solution has been
rejected by Switzerland, despite the fact that the inten-
tion of Germany to take unilateral measures in such a
case was well known.

is the responsibility of Germany to take into
As it
account the interest of the German citizens, unilateral
measures have become unavoidable. The interests of the
German areas concerned have never been taken into
account properly by Switzerland. The
consultation
quoted by Switzerland took place in the framework of
the negotiations between both countries. An autono-
mous consultation of the German citizens by Switzer-
land has apparently never happened.

The German measures do not lead to a reduction in the
capacity of Zurich airport. They are merely providing
for a different flight path to be used over German terri-
tory and do not impose limitations on the use of Zurich
airport; Germany has no competence to do so. If the
Swiss authorities take appropriate measures to adapt the
airport to the new arrival procedures, capacity at Zurich
airport will not be affected.

(b) The German measures are proportionate

The German measures are necessary. Fundamentally,
noise has to be suffered by the producer country, which
from the
is the country deriving economic benefit
activity which generates
the noise. This has been
confirmed by a Federal Court decision in Switzerland (1).
Since the economic benefits to Germany of the opera-

(1) Decision of the Federal Court Lausanne on the fifth stage of exten-

sion of 24 June 1998-BGE 124 II 293.

Within this context, several of the Swiss affirmations are
false. Firstly, runway 28 is long enough to accommodate
even the largest planes. Secondly, the waiting areas are
still useable despite higher altitude; although a descent of
4 degrees is optimal, up to 8 degrees is acceptable, and
the new altitude requires merely 7,5 degrees which can
be easily reduced to 5 degrees by a modified procedure
over Switzerland. Thirdly, as a German court has
recently found, Zurich airport continues to operate
under the 213th implementing regulation with a regu-
larly used capacity of 32 and above, much higher than
the figure of 20 to 24 advanced by Switzerland.

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During building which took place at Zurich airport in
2000, landings from the south on runways 32 and 34
were possible without further complication. With the
procedure then applied and the installation of the VOR/
DME procedure as agreed in the bilateral agreement
between Germany and Switzerland, Zurich airport can
be operated without loss of capacity. Germany refers in
particular to a document from the Swiss Department for
Environment, Transport, Energy and Communication (1)
concerning the aborted treaty between Germany and
Switzerland, which corresponds largely to the unilateral
measures, according to which there are several operating
options compatible with the operational rules.

The lack of precision landings procedures (ILS category
2 or 3 not possible for landings from the south on
runway 32) has an impact not on the capacity, but on
the reliability of this capacity in bad weather conditions.
Germany recognizes that therefore exemptions to the
operational rules may be necessary and has indeed
chosen the conditions for exemptions defined in the
213th implementing regulation so as to coincide with
weather conditions which require ILS categories 2 or 3.
Even if under the original legislation transition problems
might have occurred, the agreement of 26 June 2003
sets out a calendar for the upgrading of Zurich which
has been accepted by Switzerland and can therefore be
considered as ensuring that such problems do not occur.

the

above

Indeed,

again citing

The German measures do not
excessively impose
burdens on the environment in Switzerland. The new
landing approaches over Swiss territory do not create
noise exceeding the limits currently in force in Switzer-
land.
document
concerning the aborted treaty, it is possible to rearrange
flight paths in Switzerland in such a way that
the
number of noise-exposed citizens actually decreases rela-
tive to the approaches over German territory. In any
case, the nuisance impact of noise does not depend just
on the number of citizens exposed, but also on other
factors, such as the fact that the German area concerned
has a significant recreational function as well as a high
economic dependence on tourism.

LEGAL ASSESSMENT

IV — THE RELEVANT LEGAL FRAMEWORK

The Agreement between the European Community
and the Swiss Confederation on air transport

(16)

The relations between the European Community and the
are
Swiss Confederation concerning air
governed by a bilateral agreement of 21 June 1999
(hereafter the ‘Agreement’) which entered into force on
1 June 2002.

transport,

(1) Botschaft zum Vertrag zwischen der Schweizerischen Eidgenos-
senschaft und der Bundesrepublik Deutschland über die Durchfüh-
rung der Flugverkehrskontrolle durch die Schweizerische Eidgenos-
senschaft über deutschem Hoheitsgebiet und über Auswirkungen
des Betriebes des Flughafens Zurich auf das Hoheitsgebiet der
Bundesrepublik Deutschland http://www.uvek.admin.ch/imperia/md/
content/gs_uvek2/d/verkehr/luftverkehrsverhandlungen/21.pdf.

in their

in substance to corresponding rules of

(17) According to its Article 1 the Agreement ‘sets out rules
for the Contracting Parties in the field of civil aviation’.
In so far as the provisions of the Agreement ‘are iden-
tical
the EC
Treaty and to acts adopted in application of that Treaty,
implementation and
those provisions shall,
application, be interpreted in conformity with the rele-
vant rulings and decisions of the Court of Justice and the
Commission of the European Communities given prior
to the date of signature of this Agreement.’ However,
those concerning ‘rulings and decisions given after the
date of signature of this Agreement’ shall merely be
‘communicated to Switzerland’. In such cases, and at the
request of one of the Contracting Parties,
‘the implica-
tions of such latter rulings and decisions shall be deter-
mined by the Joint Committee in view of ensuring the
proper functioning of this Agreement.’

‘Within the scope of

(18) Article 3 of the Agreement specifically forbids discrimi-
nation:
this Agreement, and
without prejudice to any special provisions contained
therein, any discrimination on grounds of nationality
shall be prohibited.’

(19) However, although Article 15 stipulates that: ‘Subject to
the provisions of Council Regulation (EEC) No 2408/92,
as included in the Annex to this Agreement, Community
and Swiss air carriers shall be granted traffic rights
between any point in Switzerland and any point in the
Community’, it also limits the scope of reciprocal rights
by providing that: ‘two years after the entry into force of
this Agreement, Swiss air carriers shall be granted traffic
rights between points in different EC Member States’ and
‘The Contracting Parties shall undertake negotia-
that:
tions on the possible extension of the scope of this
Article to cover traffic rights between points within
Switzerland and between points within the EC Member
States five years after the entry into force of this Agree-
ment.’

(20)

Concerning the application of the Agreement, Article
18(2), first sentence, provides that in ‘cases which may
affect air services to be authorised under Chapter 3, the
Community institutions shall enjoy the powers granted
to them under the provisions of the regulations and
directives whose application is explicitly confirmed in
the Annex.’ According to Article 20, the exercise of

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these powers is subject exclusively to review by the
European Court of Justice. Article 29 provides that all
other matters under dispute which concern ‘the interpre-
tation or application of this Agreement’ can be brought
before the Joint Committee established by the Agree-
ment.

(21) According to the Annex to the Agreement,

specified in this Annex contain references

‘wherever
to
acts
Member States of
the European Community, or a
requirement for a link with the latter, the references
shall, for the purpose of the Agreement, be understood
to apply equally to Switzerland or to the requirement of
a link with Switzerland’. Among the acts the application
of which is thus ‘explicitly confirmed in the Annex’
figures Regulation (EEC) No 2408/92, except its Article
11 (provision on the Advisory Committee). For the
application of Regulation (EEC) No 2408/92, as far as
services between the Community and Switzerland are
concerned,
the same
powers it has for the application of the regulation within
the Community, subject to the same powers of review
by the European Court of Justice except ‘in cases where
Switzerland has taken or envisages taking measures of
an environmental nature under either Article 8(2) or 9
of Council Regulation (EEC) No 2408/92’ in which case
the
‘the Joint Committee, upon request by one of
Contracting Parties, shall decide whether those measures
are in conformity with [the] Agreement’.

the Commission enjoys

thus

Relevant Commission powers

(22) According to the dispositions of Article 18(2) of the
Agreement (see recital 20), the Commission enjoys the
powers conferred to it under Articles 8 and 9 of Regu-
lation (EEC) No 2408/92. Article 8(2) and 8(3) provide
that the Commission shall at the request of a Member
State or on its own initiative examine ‘published Com-
munity, national, regional or local operational rules
relating to safety, the protection of the environment and
the allocation of slots’ to which traffic rights are subject
and that it shall decide, after consulting the Committee
referred to in Article 11, whether the Member State may
continue to apply the measure. Article 8(4) enables any
Member State to refer the Commission's decision to the
Council. The Council, acting by a qualified majority,
may in exceptional circumstances take a different deci-
sion.

(23) Article 9(1) empowers Member States,

‘when serious
to
congestion and/or environmental problems exist’
limit or refuse the exercise of
‘impose conditions on,
traffic rights in particular when other modes of transport

can provide satisfactory levels of service’. The Member
State is obliged to notify the action to other Member
States and the Commission. Article 9(4) allows the
Commission to examine such actions and to prevent its
implementation
After
consulting the Committee referred to in Article 11, it
must decide whether the action is appropriate and in
conformity with Regulation (EEC) No 2408/92 and not
in any way contrary to Community law. The Council,
acting by a qualified majority, may in exceptional
circumstances take a different decision.

examination.

during

the

(24) Given the scope of the Agreement between Switzerland
and the Community, these powers are however limited
to the exercise of traffic rights between Switzerland and
the Community, excluding flights within the Com-
munity, within Switzerland as well as flights between
Switzerland and third countries and between the Com-
munity and third countries.

Application of Article 8 in a purely Community
context

(25) While Article 9 has not yet been applied, the European
Commission has already applied Article 8 several times
relating to situations entirely within the Community (1).
The Commission has examined the situations on the
basis of, on the one hand, the general principles on the
freedom to provide services,
the criteria of non-
discrimination and proportionality, and on the other
hand, compliance with other provisions of Community
law.

i.e.

(26) As the European Court of Justice has confirmed in recent
case-law, the purpose of Regulation (EEC) No 2408/92
is, inter alia, ‘to define the conditions for applying in the
air transport sector the principle of
the freedom to
provide services which is enshrined in, inter alia, Articles
59 and 61 of the Treaty’ (2), which ‘requires not only the
elimination of all discrimination on grounds of nation-
ality against providers of services who are established in
another Member State but also the abolition of any
it applies without distinction to
restriction, even if
national providers of services and to those of other
Member States, which is liable to prohibit,
impede or
render less advantageous the activities of a provider of
services established in another Member State where he
lawfully provides similar services.’ In order for measures
that constitute restrictions on the freedom to provide
services to be authorised under Regulation (EEC) No
2408/92,
in particular,
proportionate to the purpose for which they were
adopted (3).

they must be justified and,

(1) See e.g. Decisions 1994/290/EC ‘Orly’ (OJ L 127, 19.5.1994, p. 22),
2001/163/EC ‘Malpensa’ (OJ L 58, 28.2.2001, p. 29), 98/523/EC
‘Karlstad’ (OJ L 233, 20.8.1998, p. 25).

(2) Now Articles 49 and 51.
(3) Judgment of the Court in Case C-361/98 Malpensa [2001] ECR, I-
385, at paragraphs 31 to 36. It is also noteworthy that the decision
on the access to Karlstad airport established that the Commission,
‘when using the powers conferred upon it by Article 8(3) of Regu-
lation (EEC) No 2408/92, must ensure that any measures taken by
Member States' authorities are not contrary to other provisions of
Community law.’ See OJ L 233, 20.8.1998, p. 25.

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V — ANALYSIS

Legal base

Commission might take at the conclusion of the admin-
istrative procedure’ (2). Although the question of interim
measures is no longer relevant upon the adoption of this
decision, it should be noted that even if the granting of
interim measures were possible under Article 8,
the
Swiss authorities have not presented any compelling
evidence of irreparable damage.

(27) As has been stated in section IV, the first sentence of
the Community-Swiss Agreement,
Article 18(2) of
confers,
in cases which may affect air services to be
authorised under Chapter 3 of the Agreement i.e. in so
far as traffic rights according to Article 15 of the Agree-
ment are concerned, powers upon the Commission to
examine the 213th implementing regulation pursuant to
Articles 8(2) to (4) and Article 9 of Regulation (EEC) No
2408/92. The Swiss complaint refers to both provisions
of Regulation (EEC) No 2408/92 without explicitly
specifying the basis on which it asks the Commission to
intervene. Although the Commission has asked the Swiss
authorities in writing to clarify the legal basis for its
request, Switzerland has maintained that it is the respon-
intends to
sibility of Germany to specify whether it
justify its measures under Article 8(2) to (4) or under
Article 9.
the
Commission should examine the German measures in all
these respects.

further clarification,

In the absence of

(28) Article 8(2) of Regulation (EEC) No 2408/92 subjects
the exercise of traffic rights to ‘published Community,
national, regional or local operational rules relating to
safety, the protection of the environment and the alloca-
tion of slots’. The 213th regulation is a published
national operational rule relating to safety (1) and to the
protection of the environment and therefore within the
scope of Article 8(2).

(29)

The German argumentation that air
traffic control
measures are excluded from the scope of the Commis-
sion's powers of review under Article 8 of Regulation
(EEC) No 2408/92 cannot be followed.

(30)

In contrast with Article 9(4) of the Regulation, Article 8
does not refer to interim measures as requested by Swit-
zerland. Switzerland has based its request for interim
measures in the absence of a specific provision for the
taking of such interim measures,
in so far as the
Commission did not retain Article 9 as the appropriate
basis for a decision, on case-law according to which: ‘it
is important to ensure that, whilst inquiries are being
carried out, no irreparable damage is caused such as
could not be remedied by any decision which the

(1) Based on § 32(1), sentence 1 number 1 and (3), sentences 2 and 3
of German air traffic law (OJ p. 550 of 27 March 1999) in conjunc-
tion with § 27a(1) and (2) first sentence of the air traffic regulation
(OJ p. 580 of 27 March 1999).

(31)

The application of Article 8(2)
to (4) must be seen
within the context of the scope and purpose of the EC-
Swiss agreement and Regulation (EEC) No 2408/92. This
has the consequence that the powers conferred to the
Commission in Article 8(3) are limited to measures
which affect air carrier's operations i.e.
‘in cases which
may affect air services’, to use the wording of Article
18(2) of the Agreement.

(32) Article 9(3) of Regulation (EEC) No 2408/92 provides
that a Member State may only implement an action
adopted under paragraph 1 of that Article if no other
Member State concerned nor
the Commission has
contested that action within one month of receipt of the
notification 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
German authorities did not notify their measures to the
Commission three months before its entry into force,
the Commission
nor in fact at any time. Therefore,
cannot apply Article 9 for the examination of
the
German operational rules (3).

(33)

Consequently,
the
the Commission shall
German measures under Article 8(2) and 3 of Regulation
(EEC) No 2408/92.

examine

(34) Article 11 of Regulation (EEC) No 2408/92 to which
Article 8(3) thereof makes reference is not contained in
the Annex to the Agreement. In general, references to
the Advisory Committee in other articles of the Regu-
lation are part of the Agreement. Furthermore, the Final
Act contains a Declaration on Swiss attendance of
committees according to which: ‘Switzerland's represen-
tatives may, in so far as the items concern them’ attend,
among others,
‘advisory committees on air routes’. On
balance, then, the Commission has considered it neces-
the Advisory Committee established
sary to consult
under Article 11 of the regulation, with Switzerland
attending as an observer.

(2) Judgment of the Court in Case C-792/79 Camera Care [1980] ECR

119.

(3) The Swiss authorities argue in their letter of 21 October that the
non-notification can not exclude the applicability of Article 9.
However, paragraph 4 of Article 9 clearly states that:
‘when the
Commission, within one month of having been informed under
paragraph 3, takes the action up for examination’. See also Commis-
sion Decision 98/523/EC ‘Karlstad’, op. cit. at paragraphs 41 to 43.

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Applicable criteria

(35)

The criteria identified under recitals 25 and 26 have
been established in a purely Community context (1). The
question therefore arises whether the same criteria can
be used in the context of the Community-Swiss Air
Transport Agreement.

ture of this Agreement shall be communicated to Swit-
zerland. At the request of one of the Contracting Parties,
the implications of such latter rulings and decisions shall
be determined by the Joint Committee in view of
ensuring the proper functioning of this Agreement.’ The
Joint Committee has not addressed the case-law in ques-
tion.

(a) Non-discrimination

The prohibition of discrimination is clearly applicable.
As pointed out above, Article 3 of
the Agreement
between Switzerland and the Community states that:
‘Within the scope of this Agreement, and without preju-
dice to any special provisions contained therein, any
discrimination on grounds of nationality shall be prohib-
ited.’ Given the context of the agreement, the analysis of
potential discrimination cannot be limited to direct
discrimination, but must equally include indirect discri-
mination.

(b) Proportionality

inter alia, Articles 59 and 61 of

Contrary to the principle of non-discrimination,
the
principle of proportionality is not specifically mentioned
in the Agreement. In the case-law cited above (2), the
Court found that the principle of proportionality was
applicable because Regulation (EEC) No 2408/92 defined
‘the conditions for applying in the air transport sector
the principle of the freedom to provide services which is
enshrined in,
the
Treaty’ (3). However, as indicated above, at this stage,
Switzerland is not participating in the internal market
for air services. Flights within the Community will be
available to Swiss carriers only in June 2004, while
access for Community carriers to routes within Switzer-
land and access for Swiss carriers to routes within a
Member State of the European Community still need to
be negotiated. As a consequence, currently the Agree-
ment merely provides for an exchange of traffic rights. It
is therefore evident that the freedom to provide services
in the sense of Articles 49 and 51 of the Treaty does not
exist as far as the Community-Swiss Agreement
is
concerned (4). In any case, as the internal market for air
services as laid down in Regulation (EEC) No 2408/92
does not apply to traffic rights between Member States
and third countries flights between third countries and
Switzerland are excluded from the examination.

It appears therefore that it is inappropriate to examine
the Swiss request under the principle of proportionality.
However, given its application in previous cases and the
ambiguous nature of the provisions of the Agreement,
the criterion of proportionality should be examined as a
subsidiary point to see whether the German measures
would be in breach of it, if it were applicable.

(c) Compliance with other provisions of the agreement

As far as compliance with other provisions of the Agree-
ment is concerned, only those provisions of Community
law which fall within the scope of the Agreement can
potentially be relevant. However, the basic rule for the
enforcement of the Agreement is to be found in Article
18(1), stating that: ‘1. Without prejudice to paragraph 2
and the provisions of Chapter 2, each Contracting Party
shall be responsible in its own territory for the proper
enforcement of this Agreement and,
in particular, the
regulations and directives listed in the Annex.’ The
powers granted to the Community institutions in Article
18(2) are an exception from this basic rule. Conse-
quently, the Commission does not appear to have the
powers to consider possible breaches of the Agreement
outside the confines of Article 18(2), first sentence, of
the agreement.

Non-discrimination

In any event, the case-law cited above was handed down
after the Agreement was concluded. Article 1(2) provides
that: ‘rulings and decisions given after the date of signa-

(36)

(1) It must be noted that the European Court of Justice has established
that similarity of the provisions in international agreements between
the Community and a third country with terms of the Treaty is not
sufficient reason to transpose to the provisions of the agreement the
case-law of the Court.. The scope of case-law must be determined in
light of the Community's objectives and activities as defined by the
Treaty,
including in particular the objective of a single market
having the characteristics of a domestic market. Judgment of the
Court in Case C-270/80 Polydor [1982] ECR 329.

(2) See footnote 8, C-361/98, Malpensa.
(3) Now Articles 49 and 51.
(4) This contrasts with the full right of establishment provided for in

Article 4 of the Agreement.

are objective

The 213th implementing regulation does not make any
distinction on the basis of the nationality or identity of
carriers. The criteria used for exemptions to the general
rules
(save-and-rescue missions, bad
weather, runways blocked because of accidents, break-
downs of navigation systems, planes too heavy to climb
fast enough to achieve certain heights over the German
border). As a consequence, they apply equally to Com-
munity and Swiss carriers when approaching Zurich
airport over German territory or when leaving Zurich
airport over German territory. If flight paths must be
adjusted or additional fees paid, all carriers are subject to
the same treatment.

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(37) However, as already stated by the Commission in Deci-
sions 95/259/EC (1), 98/710/EC (2) and 2001/163/EC (3),
the principle of non-discrimination set out in Article
8(1) also precludes any measure which, even without
explicitly making reference to the carrier's nationality or
identity, in practice nonetheless produces discriminatory
effects, even indirectly. It must therefore be examined
whether Swiss air carriers are affected in a way that
Community carriers are not. It is settled case-law that
discrimination consists in the application of different
rules to comparable situations or in the application of
the same rule to different situations (4).

analysis the Commission has to perform. In any case,
the situations are not comparable, since Germany has
complete authority to direct
the development of the
airports on its own territory, while it has no authority
over Zurich airport. Similarly, Regulation (EEC) No
2408/92 does not regulate the exposure of population
to aircraft noise. A potential discrimination of the popu-
lation in the concerned Swiss areas relative to the popu-
lation in the concerned German areas,
it existed,
would therefore equally fall outside the scope of the
analysis the Commission has to perform in this context.

if

(38)

(39)

(40)

the air

In this regard, the Commission notes that the operation
of hub-and-spoke networks has become a common
feature among air carriers. The networks of
those
carriers are based on hub airports which are nearly
always located in the State where the carriers are
licensed and have their principal place of business. The
hub system allows them to achieve a comprehensive
coverage of
transport market by providing
services between any two airports served from the hub
airport without supporting the investments required by
direct services. Air carriers which use a given airport as
a hub usually have a very high traffic share at this
airport. As a consequence, any given restriction is bound
the
to automatically affect
airport more than its competitors. This in itself does not
appear to amount to discrimination. Indeed, otherwise
any restriction would automatically have to be consid-
ered discriminatory, and the ability of Member states to
impose operational rules in the sense of Article 8(2)
would be negated.

the dominant carrier of

the Agreement,

In order for indirect discrimination to exist, the German
measures would have to affect, among the flights falling
within the scope of
i.e. only those
between the Community and Switzerland, predomi-
nantly the flights operated by Swiss air carriers. In so far
as flights during the hours of the German measures are
concerned,
the case, since Swiss
carriers and Community carriers are affected in exact
proportion to their share of flights falling within the
scope of the Agreement, because all flights between the
Community and Switzerland are affected equally irre-
spective of the nationality of the carrier. Therefore, the
German measures cannot be considered discriminatory.

this is clearly not

The subject of Regulation (EEC) No 2408/92 within the
context of Article 18(2),
first sentence, of the Com-
munity-Swiss Agreement are traffic rights. It does not
create any rights for airports. A potential discrimination
of Zurich airport
it
existed, would therefore fall outside the scope of the

relative to German airports,

if

(1) OJ L 162, 13.7.1995, p. 25.
(2) OJ L 337, 12.12.1998, p. 52, recital 30.
(3) OJ L 58, 28.2.2001, p 29, paragraph 49.
(4) See e.g. Case C-311/97 Royal Bank of Scotland [1999] ECR I-2651,

at paragraph 26.

Proportionality

(41)

(42)

Indeed, as has been shown above,

It would appear appropriate to conclude on the basis of
the arguments mentioned in section IV that the principle
of proportionality is not a criterion the Commission is
bound to use in the context of the Community-Swiss
the
Agreement.
freedom to provide air transport services has not been
introduced, but only an exchange of
traffic rights
between the Community and Switzerland, leaving out,
for the time being at least, cabotage and flights between
Community Member States. Furthermore,
is not
evident that the German measures necessarily amount to
restrictions in the first place as the measures essentially
require adjusting flight paths without as such affecting
traffic rights. In addition, the judgment of the Court of
Justice in Malpensa (5) has not been notified and consid-
ered in the Joint Committee and cannot
therefore
provide any guidance for the interpretation of the Com-
munity-Swiss air transport agreement:

it

Even if it were considered that the principle of propor-
tionality should apply, the Commission considers that
German measures are not disproportionate. Firstly, it is
not the case that the German measures are unnecessary.
On the contrary,
the lengthy negotiations between
Germany and Switzerland over the years appears to be
proof that measures are indeed necessary although Swit-
zerland does advance that in the current situation noise
levels in Germany do not exceed ‘valid noise limits’.
However, noise limits must be considered maximum
acceptable thresholds, not comfort levels. Member States
are in principle free to take measures to lower noise
levels below these limits depending on local circum-
stances. As Germany has pointed out, the German area
overflown by planes approaching Zurich is an important
tourist destination and as such particularly vulnerable to
noise emissions. Furthermore,
the German measures
concern mostly early morning and late evening hours,
when noise sensitivity is particularly high.

(5) ECJ: Case C-361/98 Malpensa.

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(43) Nor can it be said that the German measures are dispro-
portionate, i.e. that other less onerous rules imposed by
Germany would achieve the same result, i.e. an improve-
ment in the environmental situation in Germany, which
is the scope of the powers of the German authorities in
this context. As Germany has pointed out, it does not
have any authority over the airport, since it is on Swiss
territory. Any other means of ensuring a reduction of
noise over German territory, such as a different utilisa-
tion of the airport, are therefore out of German hands.
Only Switzerland has the authority to impose such
measures,
the necessary
equipment. Indeed, it appears that one of the purposes
of the negotiations with Switzerland was to ensure that
Switzerland would take the appropriate measures within
its powers, which it has not done during the last 20
years.

including the installation of

(44) Moreover,

in evaluating whether other measures with
equivalent result would have been less onerous,
the
examination under the EC-Swiss Agreement and Regu-
lation (EEC) No 2408/92 is necessarily limited to taking
into account only their impact on air services. In the first
instance the impact of the 213th implementing regu-
lation is merely a change in the flight path that
incoming airplanes early in the morning and late at
night may take. Currently, incoming planes are required
to follow a particular approach; the effect of the German
regulation in combination with Swiss air traffic control
measures will be to substitute one required approach by
another required approach during certain times of the
day.

(45) Nor is it evident that the German measures reduce the
capacity of Zurich airport to any significant extent. With
the appropriate measures taken by Switzerland in terms
of equipping the other runways with suitable precision-
landing equipment and in terms of establishing the
corresponding flight procedures, the impact is likely to
be very small, if at all existent.

(46)

Switzerland alleges that the capacity of Zurich airport is
significantly reduced from the previous maximum rate
of 40 to 42 landings, 44 take-offs (together 68). Under
the German measures the maximum capacity would be
26 to 30 landings, 30 to 32 take-offs (together 56 to
60). However, even without the German measures the
system used for flights between 21.00 and 7.00 would
have only an average capacity of 25 landings and take-
offs. In any case, according to the summer 2003 and

winter 2003/04 timetables, the maximum number of
scheduled landings during these hours is 23, and the
maximum number of total movements is 34 (1).

(47)

If at all, the impact would therefore be limited to three
hours on weekends and public holidays. For the summer
and winter schedules, the highest number of total move-
ments during these hours is 60; only a small number of
flights are in excess of the capacity indicated above, and
only for some of
there is
these hours. Furthermore,
significant
spare capacity in the hours immediately
before and afterwards (2).

(48) As for the concern that due to the German measures
planned for 10 July 2003 Zurich airport might have to
be closed under certain regular weather conditions, this
has been addressed by the bilateral agreement of 26 June
2003. Germany has agreed to postpone the planned
measures, while Switzerland has specified a schedule to
equip Zurich airport for landings from the south in such
a way as to enable it to handle all those weather condi-
tions for which Germany would not grant exceptional
authorisations. This particular element of the complaint
has therefore become void.

(49)

Consequently,
the German
the proportionality of
measures could only have been questioned if it had been
possible for Germany, by taking other,
less onerous
measures, to achieve the same result. However, in order
to ensure the desired noise reduction, Germany did not
have any other means at its disposal. Moreover, since
the impact on air services is very small or even non-exis-
tent, it is difficult to imagine Germany taking any other
measure within its powers with even less impact on
traffic rights. Thus, even if the principle of proportion-
ality were applicable in the present context, which the
Commission considers not to be the case, the Commis-
sion is of the view that the principle would not have
been breached by the German measures under examina-
tion.

German measures in breach of other provisions of
the Agreement

(50)

The Swiss Confederation alleges moreover
the
213th implementing regulation infringes Article 17 of
the Agreement of 21 June 1999 on air
transport
between the European Community and the Swiss
Confederation.

that

(1) It should be noted that, during the hour between 6.00 and 7.00,
when there is allegedly excess demand, the overwhelming majority
of incoming flights are from third countries and are therefore not
within the scope of the EC-Swiss Air Transport Agreement.

(2) In this context, it should be noted that these calculations are based
on figures provided by Switzerland, which are contested by
Germany, and rely therefore on the assumptions most favourable
for Switzerland's argumentation.

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(51) Article 17 stipulates that:

‘The Contracting Parties shall take all appropriate
measures, whether general or particular, to ensure
fulfilment of
this
Agreement and shall refrain from any measures
which would jeopardise attainment of the objectives
of this Agreement’

the obligations arising out of

(52) As becomes clear from the text of Article 17, it creates
obligations on the Parties to the Agreement, i.e. Switzer-
land and the European Community. Germany is not a
Contracting Party to the Agreement and is therefore not
covered by this provision. Nevertheless, it is noteworthy,
as shown by the history of the negotiations between
Germany and Switzerland over the last 20 years, that
there has been a serious and sustained effort to reach a
mutually acceptable solution.

(53)

Switzerland also refers to Directive 2002/30/EC of the
European Parliament and of the Council (1) on noise-
related operating restrictions at Community airports,
recital 7 of which requires a ‘balanced approach’ on
noise management. Since the Directive was adopted by
the Community after the Agreement between the Com-
munity and Switzerland had been concluded, it must be
adopted by the Joint Committee according to Article 23
of the Agreement between the Community and Switzer-
land in order for it to apply for the purposes of the
Agreement This has not yet been done and is therefore

not applicable contrary to what Switzerland states in its
letter of 21 October 2003. However, even if it had been
it should be empha-
incorporated into the agreement,
sised that according to Article 4(1) of
the Directive
Member States shall adopt a balanced approach in
dealing with noise problems at airports in their territory,

HAS ADOPTED THIS DECISION:

Article 1

Germany may continue to apply the 213th regulation for the
implementation of German air traffic regulations establishing
procedures for instrument-guided landings and take-offs at
Zurich airport as amended by the first amending regulation of
4 July 2003.

This Decision is addressed to the Federal Republic of Germany.

Article 2

Done at Brussels, 5 December 2003.

For the Commission

Loyola DE PALACIO

Vice-President

(1) OJ L 85, 28.3.2002, p. 40.