SELEX Sistemi Integrati SpA v Commission of the European Communities and Organisation européenne pour la sécurité de la navigation aérienne (Eurocontrol).
Date: 2009-03-26
40. However, under Article 58 of the Statute of the Court of Justice, an appeal can succeed only if the breach of procedure committed by the Court of First Instance has adversely affected the appellant’s interests. In the present case, Selex has failed to demonstrate that the breach on which it relies has adversely affected its interests. Moreover, there is absolutely no indication that that breach could have had any effect whatsoever on the outcome of the proceedings.
54. However, as the Court of First Instance pointed out in the judgment under appeal, under Article 116(3) of the Rules of Procedure an intervener must accept the case as he finds it at the time of his intervention and, under the fourth paragraph of Article 40 of the Statute of the Court of Justice, the submissions made in an application to intervene are to be limited to supporting the submissions of one of the parties. According to established case‑law, those provisions do not prevent an intervener from using arguments that are new or different to those used by the party it supports, provided the intervener seeks to support that party’s submissions (see Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authorithy  [1961] ECR 1, and Case C‑245/92 P Chemie Linz v Commission [1999] ECR I‑4643, paragraph 32).
69. It should be borne in mind in this regard, as the Court of First Instance observed at paragraph 87 of the judgment under appeal, that any activity consisting in offering goods or services on a given market is an economic activity (Case 118/85 Commission  v Italy  [1987] ECR 2599, paragraph 7; Joined Cases C‑180/98 to C‑184/98 Pavlov and Others  [2000] ECR I‑6451, paragraph 75; and Case C‑49/07 MOTOE [2008] ECR I‑0000, paragraph 22).
70. It should also be borne in mind that, according to the case‑law of the Court of Justice, activities which fall within the exercise of public powers are not of an economic nature justifying the application of the Treaty rules of competition (see, to that effect, Case 107/84 Commission v Germany  [1985] ECR 2655, paragraphs 14 and 15; SAT Fluggesellschaft , paragraph 30; and MOTOE , paragraph 24)
71. In SAT Fluggesellschaft , the Court, while not specifically ruling on Eurocontrol’s activity of assisting the national administrations, considered at paragraph 30 of that judgment that, taken as a whole, Eurocontrol’s activities, by their nature, their aim and the rules to which they are subject, are connected with the exercise of powers relating to the control and supervision of air space, which are typically those of a public authority and are not of an economic nature. The Court therefore held that Articles 86 and 90 of the Treaty (now Articles 82 EC and 86 EC) must be interpreted as meaning that an international organisation such as Eurocontrol is not an undertaking for the purposes of those provisions.
72. Contrary to what Selex maintains, that conclusion also applies with regard to the assistance which Eurocontrol provides to the national administrations, when so requested by them, in connection with tendering procedures carried out by those administrations for the acquisition, in particular, of equipment and systems in the field of air traffic management.
76. It can be inferred from the Convention on the Safety of Air Navigation that the activity of providing assistance is one of the instruments of cooperation entrusted to Eurocontrol by that convention and plays a direct role in the attainment of the objective of technical harmonisation and integration in the field of air traffic with a view to contributing to the maintenance of and improvement in the safety of air navigation. That activity takes the form, inter alia, of providing assistance to the national administrations in the implementation of tendering procedures for the acquisition of air traffic management systems or equipment and is intended to ensure that the common technical specifications and standards drawn up and adopted by Eurocontrol for the purpose of achieving a harmonised European air traffic management system are included in the tendering specifications for those procedures. It is therefore closely linked to the task of technical standardisation entrusted to Eurocontrol by the contracting parties in the context of cooperation among States with a view to maintaining and developing the safety of air navigation and is thus connected with the exercise of public powers.
77. The Court of First Instance therefore made an assessment that was erroneous in law in finding that the activity of assisting the national administrations was separable from Eurocontrol’s tasks of air space management and development of air safety by considering that that activity had an indirect relationship with air navigation safety, on the ground that the assistance provided by Eurocontrol covered only technical specifications in the implementation of tendering procedures and therefore affected air navigation safety only as a result of those procedures.
81. However, it must be borne in mind that, if the grounds of a judgment of the Court of First Instance disclose an infringement of Community law but its operative part is shown to be well founded on other legal grounds, the appeal must be dismissed (see, Case C‑30/91 P Lestelle v Commission  [1992] ECR I‑3755, paragraph 28; Case C‑210/98 P Salzgitter  v Commission  [2000] ECR I‑5843, paragraph 58; and Case C‑312/00 P Commission v Camar and Tico  [2002] ECR I‑11355, paragraph 57).
116. Contrary to those submissions, it is apparent from the case‑law that the fact that a body is non‑profit‑making is a relevant factor for the purpose of determining whether or not an activity is of an economic nature but it is not sufficient of itself (see, inter alia, to that effect, Case C‑244/94 Fédération française des sociétés d’assurance and Others  [1995] ECR I‑4013, paragraph 21; Case C‑67/96 Albany  [1999] ECR I‑5751, paragraph 85; and Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraph 31).
118. Lastly, according to Selex, it was contrary to the case‑law to state, at paragraph 77 of the judgment under appeal, that the management of intellectual property rights is ancillary to the promotion of technical development, forming part of the aims of Eurocontrol’s public service tasks and not being pursued in its own interest, separable from those aims, which excludes the possibility that the activity in question is economic in nature. Selex submits, first, referring to the judgment in Enirisorse , that it has already been held that the task of developing new technologies may be economic in nature and, second, referring to that judgment and to the judgment in Case C‑475/99 Ambulanz Glöckner  [2001] ECR I‑8089, paragraph 21, that the fact that an operator may have public service obligations does not prevent the activity in question from being regarded as an economic activity.