Confédération suisse v European Commission.
Date: 2013-03-07
47. In the present case, the Court considers it necessary to rule at the outset on the substance of the case (Case C‑273/04 Poland  v Council  [2007] ECR I‑8925, paragraph 33).
The appeal
67. The Court observes that, according to settled case‑law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review (see, inter alia, Case C‑41/00 P Interporc  v Commission  [2003] ECR I‑2125, paragraph 55, and Case C‑521/09 P Elf Aquitaine  v Commission [2011] ECR I‑0000, paragraph 147).
78. It should be noted at the outset that the EC‑Switzerland Air Transport Agreement, which forms part of a series of seven sectoral agreements between the same contracting parties, was signed on 21 June 1999 after the rejection by the Swiss Confederation, on 6 December 1992, of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) and that, by its refusal, the Swiss Confederation did not subscribe to the project of an economically integrated entity with a single market, based on common rules between its members, but chose the route of bilateral arrangements between the European Union and its Member States in specific areas (see, to that effect, Case C‑351/08 Grimme  [2009] ECR I‑10777, paragraphs 26 and 27, and Case C‑541/08 Fokus Invest  [2010] ECR I‑1025, paragraph 27).
79. Therefore, the Swiss Confederation did not join the internal market of the European Union, the aim of which is the removal of all obstacles to create an area of total freedom of movement analogous to that provided by a national market, which includes inter alia the freedom to provide services (see Grimme , paragraph 27, and Case C‑70/09 Hengartner and Gasser [2010] ECR I‑7233, paragraph 41).
80. Consequently, the interpretation given to the provisions of European Union law concerning the internal market cannot be automatically applied by analogy to the interpretation of the EC‑Switzerland Air Transport Agreement, unless there are express provisions to that effect laid down in the Agreement itself (see, to that effect, Grimme , paragraph 29; Fokus Invest , paragraph 28; and Hengartner and Gasser , paragraph 42).
99. In addition, the Court notes that, under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on a point of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, Case C‑214/05 P Rossi v OHIM  [2006] ECR I‑7057, paragraph 26; Case C‑16/06 P Les Éditions Albert René  v OHIM  [2008] ECR I‑10053, paragraph 68; and Case C‑254/09 P Calvin Klein Trademark Trust v OHIM  [2010] ECR I‑7989, paragraph 49).
100. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, Les Éditions Albert René  v OHIM , paragraph 69; Case C‑535/06 P Moser Baer India  v Council  [2009] ECR I‑7051, paragraph 33; and Calvin Klein Trademark Trust  v OHIM , paragraph 50).
105. As regards the Swiss Confederation’s argument relating to the alleged refusal of the General Court to examine the necessity of the measures laid down in the 213th Regulation, as amended, the Court notes that that argument is based on a manifest misinterpretation of paragraph 149 of the judgment under appeal, which must be understood in the light of its context (see, to that effect, Case C‑294/95 P Ojha  v Commission  [1996] ECR I‑5863, paragraphs 48 and 49). In paragraph 149 of the judgment under appeal, the General Court merely stated that the German authorities were entitled to adopt such measures. However, it is apparent from paragraphs 154 et seq. of the judgment under appeal that, by that assertion, the General Court in no way sought to limit its power of review over the proportionate nature of those measures. In particular, in paragraphs 163 et seq. of that judgment, the General Court examined in a precise and detailed manner whether less onerous measures existed which would have enabled the Federal Republic of Germany to achieve the objective pursued by the measures laid down in the 213th Regulation, as amended.
123. Consequently, even supposing the sixth ground of appeal to be founded, it is not such as to invalidate the judgment under appeal and must, therefore, be rejected as ineffective since that conclusion remains founded on other grounds (see, to that effect, Case C‑412/05 P Alcon  v OHIM  [2007] ECR I‑3569, paragraph 41, and Case C‑221/10 P Artegodan v Commission  [2012] ECE I‑0000, paragraph 110).