CELEX: C1998/378/16
Language: en
Date: 1998-12-05 00:00:00
Title: Action brought on 8 October 1998 by the Italian Republic against the Commission of the European Communities (Case C-361/98)

5.12.98               EN                  Official Journal of the European Communities                                      C 378/9
Action brought on 8 October 1998 by the Italian Republic                       distribution of traffic should be considered
   against the Commission of the European Communities                          contrary to Community law if they do not respect
                       (Case C-361/98)                                         the principle of proportionality; and therefore
                         (98/C 378/16)
                                                                          (b) in assessing in terms of proportionality the decrees
                                                                               of the Minister of Transport relating to the Milan
An action against the Commission of the European                               airport system, which constitute the grounds for the
Communities was brought before the Court of Justice of                         prohibition imposed on the Italian Government.
the European Communities on 8 October 1998 by the
Italian Republic, represented by Ivo M. Braguglia and Pier
Giorgio Ferri, Avvocati dello Stato, with an address for             3. In the alternative and in the event that the Court does
service in Luxembourg at the Italian Embassy, 5 Rue                       not uphold the complaints made in the foregoing
Marie-AdeÂlaïde.                                                          pleas, it is strongly disputed that the abovementioned
                                                                          national provisions, in imposing restrictions on the
                                                                          freedom to provide services, have contravened the
The applicant claims that the Court should:                               principle of proportionality, as the Commission claims
                                                                          as a matter of principle applicable in this case.
Ð annul the contested decision of the Commission of
     16 September 1998;
                                                                     4. Paragraphs 29 to 46 of the contested decision concern
                                                                          the assessment of the Italian decrees from the point
Ð order the defendant to pay the costs.                                   of view of non-discrimination. The Commission's
                                                                          reasoning in alleging that the criteria laid down by the
                                                                          Italian provisions to identify the traffic to be relocated
Pleas in law and main arguments adduced in support:
                                                                          from Linate to Malpensa airport are in breach of the
                                                                          prohibition under Article 8(1) appears flawed for the
1. In the view of the Italian Government, the                             following reasons.
     Commission's position on the extent of its power of
     decision finds no support in the legislative provision
                                                                          (a) The Commission held that the criterion based on
     which convers its competence (Article 8(3)) (1); the
                                                                               volume of traffic, even if it led to the selection of
     wording of Article 8(3) identifies the extent of its
                                                                               the Milan-Rome-Milan route as the only traffic
     supervisory power sufficiently clearly in terms of the
                                                                               retained at Linate airport, cannot be held to be
     need for a national measure to conform with the
                                                                               directly discriminatory in as much as that route is
     provisions of Article 8(1).
                                                                               open to all Community air carriers.
     The Commission interprets the provision conferring
                                                                          (b) The second and more serious flaw in the
     the power of decision widely, applying it to cases and
                                                                               Commission's reasoning is that it assessed the
     situations other than those contemplated therein.
                                                                               effects of relocating traffic at Malpensa airport in
                                                                               the light of the existing rather than the future
     Such an interpretation appears contrary to the                            situation: that is to say looking at the airport of
     principles of the Treaty as regards the institutional                     Malpensa as it was rather than as it will be after
     order of the Community and, in particular, to the                         the opening of the new facilities scheduled for
     principle of the strict legality of the Commission's                      25 October 1998.
     power of decision under Article 155 of the Treaty.
                                                                     (1) Council Regulation (EEC) No 2408/92 (OJ L 240, 24.8.1992,
     The power conferred by Article 8(3) amounts to                      p. 8).
     accepting a breach of Community law at the expense
     of a State; the prohibition of discrimination in
     Article 8(1) is a legal rule in the application of which
     there is no discretion.
2. The second plea of the application alleges that the               Reference for a preliminary ruling by the Finanzgericht
     contested decision is not well-founded in law in as             Düsseldorf by order of that court of 5 October 1998 in
     much as it determines that the Italian decrees under            the case of Brinkmann Tabakfabriken GmbH against
     consideration contravene Community law in not                                        Hauptzollamt Bielefeld
     observing the principle of proportionality.
                                                                                              (Case C-365/98)
     In the view of the Italian Government the decision is                                     (98/C 378/17)
     flawed:
     (a) in terms of its legal premisses on the basis of             Reference has been made to the Court of Justice of the
         which it is claimed that the national provisions on         European Communities by order of the Finanzgericht