CELEX: C2002/233/11
Language: en
Date: 2002-09-28 00:00:00
Title: 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)

28.9.2002              EN                      Official Journal of the European Communities                                             C 233/7
Abad): Application for a declaration that, by failing to take the                     —      have not given prior approval for the sampling and
measures necessary in order to ensure, as regards the three                                  measurement procedures and have not determined
incineration furnaces installed at Mazo and Barlovento on the                                the location of the measurement points concerned;
island of La Palma (Spain), the application of:
                                                                                      —      have not laid down any measurement programme;
—    Article 2 of Council Directive 89/369/EEC of 8 June                        —     Article 7 of that directive, inasmuch as those furnaces are
     1989 on the prevention of air pollution from new                                 not equipped with auxiliary burners, which would make it
     municipal waste incineration plants (OJ 1989 L 163,                              possible to maintain the minimum combustion tempera-
     p. 32), inasmuch as those furnaces are operating without                         ture of 850C, particularly during start-up and shut-down
     the required prior authorisation:                                                operations,
                                                                                the Kingdom of Spain has failed to fulfil its obligations under
                                                                                that directive;
—    Article 6 of that directive, inasmuch as, with regard to
     those furnaces, the competent authorities
                                                                          2.    Dismisses the remainder of the action;
                                                                          3.    Orders the Commission of the European Communities to pay
     —     have not taken periodic measurements in respect of                   one third of the costs and the Kingdom of Spain two thirds of
           the parameters prescribed by that article;                           the costs.
                                                                          (1 ) OJ C 192 of 8.7.2000.
     —     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;
                                                                                            JUDGMENT OF THE COURT
—    Article 7 of that directive, inasmuch as those furnaces are
     not equipped with auxiliary burners, which would make                                           (Sixth Chamber)
     it possible to maintain the minimum combustion tem-
     perature of 850oC, particularly during start-up and shut-
     down operations,                                                                                   9 July 2002
                                                                          in Case C-181/00 (Reference for a preliminary ruling from
the Kingdom of Spain has failed to fulfil its obligations under           the Supremo Tribunal Administrativo): Flightline Ltd v
that directive, the Court (Fifth Chamber), composed of: P. Jann,          Secretário de Estado dos Transportes e Communicações,
President of the Chamber, D.A.O. Edward and C.W.A. Timmer-                        Transportes Aéreos Portugueses SA (TAP) ( 1)
mans (Rapporteur), Judges; P. Léger, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 11 July
2002, in which it:                                                        (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
1.   Declares that, by failing to adopt the measures necessary in                                  Decision 94/698/EC)
     order to ensure, as regards the three incineration furnaces
     installed at Mazo and Barlovento on the island of La Palma,
     the application of:                                                                              (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               (Provisional translation; the definitive translation will be published
           municipal waste incineration plants, inasmuch as, with                              in the European Court Reports)
           regard to those furnaces, the competent authorities
           —     have not taken periodic measurements in respect of       In Case C-181/00: Reference to the Court under Article 234
                 the parameters prescribed by that article;               EC by the Supremo Tribunal Administrativo (Portugal) for a
 ---pagebreak--- C 233/8                  EN                       Official Journal of the European Communities                                          28.9.2002
preliminary ruling in the proceedings pending before that                                     JUDGMENT OF THE COURT
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)                                       (Fifth Chamber)
and (d) of Council Regulation (EEC) No 2408/92 of 23 July
1992 on access for Community air carriers to intra-Com-                                                  11 July 2002
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                  in Case C-210/00 (Reference for a preliminary ruling from
favour of TAP (Transportes Aéreos Portugueses) (OJ 1994                      the Bundesfinanzhof): Käserei Champignon Hofmeister
L 279, p. 29), the Court (Sixth Chamber), composed of:                           GmbH & Co. KG v Hauptzollamt Hamburg-Jonas (1)
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                    (Agriculture — Export refunds — False declaration —
                                                                             Penalty — Validity of point (a) of the first subparagraph of
Administrator, for the Registrar, has given a judgment on
                                                                             Article 11(1) of Regulation (EEC) No 3665/87, as amended
9 July 2002, in which it has ruled:
                                                                             by Regulation (EC) No 2945/94 — Concept of ‘force
                                                                                                            majeure’)
                                                                                                       (2002/C 233/12)
1.    The exercise by a Member State of the rights and powers laid
      down in Article 4 of Council Regulation (EEC) No 2408/92                                  (Language of the case: German)
      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           (Provisional translation; the definitive translation will be published
      regulation to restrict competition until 1 April 1997 in                                  in the European Court Reports)
      cabotage services within its territory.
                                                                             In Case C-210/00: Reference to the Court under Article 234
2.    In a public tender procedure organised in 1995 for the provision       EC, by the Bundesfinanzhof (Germany) for a preliminary ruling
      of scheduled air services on a route subject to public service         in the proceedings pending before that court between Käserei
      obligations imposed on that route under Article 4 of Regulation        Champignon Hofmeister GmbH & Co. KG and Hauptzollamt
      No 2408/92, a Member State was entitled to require air                 Hamburg-Jonas, on the validity of point (a) of the first
      carriers licensed by another Member State which submitted bids         subparagraph of Article 11(1) of Regulation (EEC) No 3665/
      to meet the conditions laid down in Article 3(2) of that               87 of 27 November 1987 laying down common detailed rules
      regulation, provided that the invitation to tender did not             for the application of the system of export refunds on
      continue to have effect beyond 1 April 1997.                           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
3.    Article 1(e) of Commission Decision 94/698/EC of 6 July                subparagraph of Article 11(1) of the same regulation, the
      1994 concerning increase in capital, credit guarantees and tax         Court (Fifth Chamber), composed of: D. A. O. Edward, acting
      exemption in favour of TAP, which makes approval of the aid            for the President of the Fifth Chamber, A. La Pergola and
      for which it provides subject to the condition that the Portuguese     C. W. A. Timmermans (Rapporteur), Judges; C. Stix-Hackl,
      Republic honour its undertaking to apply Article 4 of Regu-            Advocate General; H. A. Rühl, Principal Administrator, for the
      lation No 2408/92 to the autonomous regions of Madeira                 Registrar has given a judgment on 11 July 2002, in which it
      and the Azores with effect from 1 January 1996 at the latest           has ruled:
      and publish the public service obligations for the routes in
      question, does not preclude that Member State from exercising          1.    Examination of the first question referred has not revealed any
      its right under Article 3(2) of that regulation.                             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
( 1) OJ C 192 of 8.7.2000.
                                                                                   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