SAT Fluggesellschaft mbH v Eurocontrol.
Date: 1994-01-19
9 The objection that the Court lacks jurisdiction must be rejected. The Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaty provisions pursuant to Article 177 of the Treaty which establishes direct cooperation between the Court and the courts and tribunals of the Member States by way of a non-contentious procedure excluding any initiative of the parties who are merely invited to be heard in the course of that procedure (see, in particular, the judgment in Case 44/65 Hessische Knappschaft v Maison Singer et Fils [1965] ECR 965).
16 The French, German and Greek Governments, and the United Kingdom, on the other hand, base their reasoning on the public character of Eurocontrol' s activities, in denying that the latter is an undertaking within the meaning of the Treaty rules of competition. They are supported, in particular, by the judgments of the Court on the interpretation of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, from which it is apparent that Eurocontrol must be regarded as a public authority acting in the exercise of its powers (judgments in Case 29/76 LTU v Eurocontrol [1976] ECR 1541, and in Joined Cases 9/77 and 10/77 Bavaria Fluggesellschaft and Germanair v Eurocontrol [1977] ECR 1517). More particularly, they argue that air navigation control is a supervisory activity intended to ensure public safety. The collection of route charges, for its part, is an activity carried on on behalf of the Contracting States, the charges merely constituting the consideration for the air navigation services provided by those States.
18 It follows from the case-law of the Court (see especially the judgments in Case C41/90 Hoefner and Elser v Macrotron GmbH [1991] ECR I-1979, at paragraph 21, and in Joined Cases C-159/91 and C-160/91 Poucet et Pistre [1993] ECR I-637, at paragraph 17) that, in Community competition law, the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed.
19 In order to determine whether Eurocontrol' s activities are those of an undertaking within the meaning of Articles 86 and 90 of the Treaty, it is necessary to establish the nature of those activities.
28 Contrary to SAT' s contention, Eurocontrol' s collection of route charges, which gave rise to the dispute in the main proceedings, cannot be separated from the organization' s other activities. Those charges are merely the consideration, payable by users, for the obligatory and exclusive use of air navigation control facilities and services. As the Court has already held, specifically in connection with the interpretation of the abovementioned Convention of 27 September 1968, Eurocontrol must, in collecting the charges, be regarded as a public authority acting in the exercise of its powers (the LTU judgment, cited above, at paragraphs 4 and 5).
30 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. They are not of an economic nature justifying the application of the Treaty rules of competition.
31 Accordingly, an international organization such as Eurocontrol does not constitute an undertaking subject to the provisions of Articles 86 and 90 of the Treaty.