CELEX: C1995/268/43
Language: en
Date: 1995-10-14 00:00:00
Title: Action brought on 5 September 1995 by the Kingdom of Belgium against the Commission of the European Communities (Case C-291/95)

No C 268/20              EN                  Official Journal of the European Communities                                   14 . 10 . 95
30 August 1 995 by the Commission of the European                       The applicant claims that the Court should:
Communities, represented by Antonio Aresu, of its Legal
Service, acting as Agent, with an address for service in                1 , annul Articles 1 and 2 of the Commission's decision of
Luxembourg at the office of Carlos Gomez de la Cruz,
Wagner Centre, Kirchberg.
                                                                            28 June 1995 relating to a proceeding pursuant to
                                                                            Article 90 ( 3 ) of the Treaty establishing the European
                                                                            Community and concerning the system of discounts on
The applicant claims that the Court should :                                landing fees at Brussels National Airport;
— declare that, by adopting the Ministerial Decree of
    13 March 1992 without first communicating a draft                   2 , order the Commission to pay the costs .
    thereof to the Commission, the Italian Republic has
    failed to fulfil its obligations under Article 8 of Council
    Directive 83/ 189/EEC of 28 March 1983 laying down a                Pleas in law and main arguments adduced in support:
    procedure for the provision of information in the field of
    technical standards and regulations (*),                            1 . The contested decision states that the system of
                                                                            discounts on landing fees introduced by Article 2 ( 2 ) of
— order the Italian Republic to pay the costs .                             the Royal Decree of 22 December 1989 is a measure
                                                                            incompatible with Article 90 ( 1 ) of the EC Treaty, read
Pleas in law and main arguments adduced in support:                         in conjunction with Article 86 thereof.
The Commission states that the Ministerial Decree of
3 March 1992 had not been communicated to it in draft                   2 . According to the Commission, the system of discounts
form, which constitutes a manifest failure to fulfil the                    established by the Royal Decree has the effect of
obligations imposed upon Member States by Directive                         applying to the airlines who use Brussels airport
83/ 189/EEC . Furthermore, in the view of the Commission                    dissimilar conditions for equivalent transactions . The
as set out in communication 86/C 245/05 ( OJ No C 245 ,                     Commission claims that the applicant introduced that
1986 , p . 4 ), that infringement of the procedure laid down by             system in order to benefit the Belgian national air
Directive 83/ 189/EEC renders the technical regulations in                  transport company, namely Sabena .
question incapable of producing legal effects and therefore
unenforceable against third parties . The Commission                        The discounts laid down by the Belgian State in the
maintains that the prohibition on the adoption of national                  Royal Decree are administered by the Régie des Voies
measures without prior notification has direct effect and                   Aériennes ( Airways Authority: hereinafter 'the RVA').
confers upon the individual rights which may be relied upon                 Since the RVA has been granted exclusive rights with
before the national courts .                                                respect to the operation of Brussels National Airport,
                                                                            the Commission considers that it holds a dominant
In particular, the Commission claims that the Italian                       position on the market for such services and that the
authorities have infringed the first paragraph of Article 8(1 )             application of the allegedly discriminatory discounts
of Directive 83/ 189/EEC which provides for the                             constitutes an abuse of a dominant position. However,
communication of all draft technical regulations .                          in view of the fact that the RVA can exercise no
                                                                            discretion in that area, its sole role being to implement
(!) OJ No L 109 , 26 . 4 . 1983 , p . 8 .                                   the Royal Decree, the Commission claims that the
                                                                            applicant State has acted in disregard of its obligations
                                                                            under Article 90 ( 1 ) of the EC Treaty, read in
                                                                            conjunction with Article 86 thereof, in so far as it
                                                                            requires the RVA to administer the discriminatory
                                                                            system of discounts .
Action brought on 5 September 1995 by the Kingdom of
Belgium against the Commission of the European                          3 . The applicant claims that the Commission infringed the
                             Communities
                                                                            rights of the defence in its adoption of the contested
                          ( Case C-291 /95 )                                decision . In the course of the procedure, the applicant
                            ( 95/C 268/43 )                                 had no opportunity to give its views, as would have been
                                                                            proper, and no access to the Commission's file.
An action against the Commission of the European
Communities was brought before the Court of Justice of the                  The applicant also claims that the decision was adopted
European Communities on 5 September 1995 by the                             in disregard of Articles 86 and 90 of the EC Treaty; that
Kingdom of Belgium, represented by Jan Devadder, acting                     it is vitiated by lack of competence; that the analysis on
as Agent, assisted by Jacques H. J. Bourgeois, of the Brussels              which it was based is flawed, both in fact and in law,
Bar, with an address for service in Luxembourg at the                       thus infringing Article 190 of the EC Treaty; and lastly,
Belgian Embassy, 4 rue des Girondins .                                      that it is vitiated by misuse of powers .