Case C-71/04: Reference for a preliminary ruling by the Tribunal Supremo, Contentious-Administrative Chamber, Third Division, by order of that Court of 22 December 2003, rectified by order of 22 January 2004, in the case of Administración del Estado against Junta de Galicia
Date: 2004-04-17
Institutions: Court of Justice
Subjects: aid for restructuring, economic support, financial aid, interpretation of the law, production aid, shipbuilding

17.4.2004

EN

Official Journal of the European Union

C 94/23

Pleas in law and main arguments

The contested decision of the European Commission should be
annulled on the following grounds:

The Commission errs by proceeding from the assumption in its
decision of 5 December 2003 that the Agreement on air trans-
port which was signed by the European Community and the
Swiss Confederation on 21 June 1999 simply provides for an
exchange of traffic rights. The Agreement in fact extends the
internal air traffic market to the Swiss Confederation with the
result that the airlines of the Swiss Confederation and the Euro-
pean Union have equal rights of access to the market. That also
means in particular that the Swiss Confederation and Swiss
companies falling within the scope of the Agreement can rely
on the freedom to provide services in the air traffic sector.

The Commission was wrong to deny infringement of
the
freedom to provide services. Contrary to the Commission's
decision, the 213th Regulation for the implementation of the
Air Traffic Regulations of the Federal Republic of Germany
affects the freedom of Swiss International Air Lines (hereinafter
also ‘SWISS’) to provide services, because it hinders the opera-
tion of flights to and from Zurich.

The Commission was wrong to deny that there was discrimina-
tion against Swiss companies was caused by the 213th Regu-
lation. The Swiss airline SWISS is disadvantaged in competition
because it is subject to stricter limitations on the use of its hub
at Zurich than its direct competitor Lufthansa suffers in using
its own hubs at Frankfurt-am-Main and Munich. SWISS is also
affected more severely than the other airlines flying to Zurich,
since it is the ‘home carrier’ and the operator of the Zurich air
traffic hub and as such is particularly vulnerable to limitations
on the operation of Zurich airport. In addition, the German
measures treat the Zurich international airport operated by
UNIQUE Flughafen Zürich AG less favourably than similar
airports in Germany,
to which no even roughly similarly
drastic flight limitations apply or may be applied.

Contrary to the Commission's opinion, those limitations must
be measured against the principle of proportionality. That prin-
ciple is applicable in connection with the Air Transport Agree-
ment. It is infringed by the German 213th Regulation. That
regulation is not based on any compelling ground of general
interest and the limitations it contains are neither necessary nor
appropriate. The Federal Republic has at its disposal, contrary
to the Commission's view, alternative means by which to
achieve its aims.

The Commission was wrong to deny infringement of the duty
of honest cooperation.

Furthermore, in the proceedings the Commission has breached
the right to a fair hearing. The Commission began with precon-
ceived opinions and did not examine the arguments of the
Swiss Confederation in an unprejudiced manner or clarify the
facts of the matter. As a result the requirement for fairness was
breached. The reasons given for the decision do not satisfy the
requirements laid down in the case-law.

(1) OJ 2004 L 4, p. 13.

Reference for a preliminary ruling by the Tribunal
Supremo, Contentious-Administrative Chamber, Third
Division, by order of that Court of 22 December 2003,
in the case of
rectified by order of 22 January 2004,

Administración del Estado against Junta de Galicia

(Case C-71/04)

(2004/C 94/49)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Tribunal Supremo (Supreme
Court), Contentious-Administrative Chamber, Third Division, of
22 December 2003, rectified by order of 22 January 2004,
received at the Court Registry on 16 February 2004, for a preli-
minary ruling in the case of Administración del Estado against
Junta de Galicia on the following question:

Do Article 87(1) and (3)(c) and (d) (previously Article 92(1) and
(3)(c) and (d)) and Article 88(3) (previously Article 93(3)) of the
EC Treaty, in conjunction with Council Directive 90/684/EEC
of 21 December 1990 (1) on aid to shipbuilding, permit the
adoption, without prior notification to the Commission of the
the kind
European Communities, of national
contained in Decree 217/1994 of 23 June 1994 of the Xunta
de Galicia – which establish a ‘new system of aid’ for a specific
shipbuilding and ship conversion sector, being precisely that
sector which, by virtue of the gross tonnage, power and other
characteristics of the vessels concerned, does not fall within the
scope of the said Directive 90/684?

rules – of

(1) OJ L 380 of 31.12.1990, p. 27.

Action brought on 17 February 2004 by the Commission
of the European Communities against the Republic of
Finland

(Case C-72/04)

(2004/C 94/50)

Justice of

An action against the Republic of Finland was brought before
the European Communities on 17
the Court of
February 2004 by the Commission of the European Commu-
nities, represented by G. Zavvos and M. Huttunen, acting as
Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1. Declare that the Republic of Finland has failed to fulfil its
obligations under Directive 2000/64/EC of the European
the Council of 7 November 2000
Parliament and of
amending Council Directives 85/611/EEC, 92/49/EEC,
92/96/EEC and 93/22/EEC as regards exchange of informa-
tion with third countries (1), since it has not brought into
force the laws, regulations and administrative provisions
necessary to comply with the directive, or at least has not
informed the Commission of them;