Grand Duchy of Luxemburg v European Parliament and Council of the European Union.
Date: 2011-05-12
31. The general principle of equal treatment, as a general principle of Community law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case 106/83 Sermide  [1984] ECR 4209, paragraph 28; Joined Cases C‑133/93, C‑300/93 and C‑362/93 Crispoltoni and Others  [1994] ECR I‑4863, paragraphs 50 and 51; Case C‑313/04 Franz Egenberger  [2006] ECR I‑6331, paragraph 33, and Case C‑127/07 Arcelor Atlantique et Lorraine and Others  [2008] ECR I‑9895, paragraph 23).
32. The comparability of different situations must be assessed with regard to all the elements which characterise them. These elements must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (see, to that effect, Arcelor Atlantique et Lorraine and Others , paragraphs 25 and 26 and the case-law cited).
34. Thus, by empowering the Council to decide when, how and to what extent it should intervene as regards sea and air transport, the Treaty confers broad legislative powers on it as regards the adoption of appropriate common rules (see, to that effect, Case C‑440/05 Commission  v Council  [2007] ECR I‑9097, paragraph 58; see also, with regard to the legislative powers of the Council concerning the common transport policy, Case 97/78 Schumalla  [1978] ECR 2311, paragraph 4, and Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf  [1997] ECR I-4475, paragraph 23).
35. When reviewing the exercise of such a power, the European Union Court may not substitute its own assessment for that of the European Union legislature, and must confine itself to examining whether the legislature’s assessment contains a manifest error or constitutes a misuse of powers or whether the legislature clearly exceeded the bounds of its legislative discretion (see, to that effect, Case C‑122/94 Commission  v Council  [1996] ECR I‑881, paragraph 18; Case C‑84/94 United Kingdom  v Council  [1996] ECR I‑5755, paragraph 58; SAM Schiffahrt and Stapf , paragraph 24; and Joined Cases C‑27/00 and C‑122/00 Omega Air and Others  [2002] ECR I‑2569, paragraph 64).
50. In those circumstances, the exercise by the European Union legislature of its powers is not vitiated by a manifest error or by a misuse of power, and it has not manifestly exceeded the limits of its broad legislative discretion in this field by considering that Member States’ secondary airports are not in the same situation, as regards airport users, as the main airports. In any event, it is open to the legislature to resort to categorisation according to objective criteria and on the basis of general findings in order to introduce a general and abstract system of rules (see, to that effect, Case C‑485/08 P Gualtieri  v Commission  [2010] ECR I‑0000, paragraph 81). That is even more the case where implementation by the European Union legislature of a common policy involves the need to evaluate a complex economic situation, as is generally the case in questions of air transport (see, to that effect, SAM Schiffahrt and Stapf , paragraph 25 and the case-law cited, and Omega Air and Others , paragraph 65).
51. In those circumstances, the first part of the first plea in law, alleging different treatment of comparable situations, must be rejected.
The second part of the first plea in law, alleging that different situations have been treated in the same way
61. It is settled case-law that the principle of proportionality is one of the general principles of European Union law and requires that measures implemented through provisions of European Union law be appropriate for attaining the legitimate objectives pursued by the legislation at issue and must not go beyond what is necessary to achieve them (Case C‑58/08 Vodafone and Others [2010] ECR I‑0000, paragraph 51 and the case-law cited).
62. As regards the judicial review of compliance with those conditions, in the fields in which the European Union legislature has a broad legislative power, such as air transport matters (see Commission  v Council , paragraph 58), the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate, having regard to the objective which the competent institutions are seeking to pursue (see, to that effect, Omega Air and Others , paragraph 64).
63. However, even though it has such a power, the European Union legislature must base its choice on objective criteria. Furthermore, in assessing the burdens associated with various possible measures, it must examine whether objectives pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators ( Arcelor Atlantique et Lorraine and Others , paragraph 58, and Vodafone and Others , paragraph 53 and the case-law cited).
76. In that regard, it is appropriate to bear in mind that the second paragraph of Article 5 EC refers to the principle of subsidiarity – given actual definition by the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the Treaty – and which provides that the Community, in areas which do not fall within its exclusive competence, is to take action only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. That protocol, in paragraph 5, also lays down guidelines for the purposes of determining whether those conditions are met ( Vodafone and Others , paragraph 72).