Commission of the European Communities v Portuguese Republic.
Date: 2001-06-26
17 In this connection, it must be borne in mind that, notwithstanding its other powers under the Treaty to ensure that Member States comply with Community law, the Commission enjoys a discretion in deciding whether or not to commence an action for failure to fulfil obligations. It is not required to justify its decision, nor will the admissibility of the action be dependent upon the circumstances dictating its choice (see to that effect, in particular, Case 247/87 Star Fruit v Commission [1989] ECR 291, paragraphs 11 and 12, and Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 27). The Court of Justice need only ensure that the procedure adopted may, in principle, be employed with regard to the alleged infringement.
20 That distinction is invalid. The amount of airport taxes to be paid will directly and automatically influence the price of the journey. Differences in the taxes to be paid by passengers will automatically be reflected in the transport cost, and thus, in the present instance, access to national or regional flights is favoured over access to intra-Community flights. Moreover, the Court of Justice has had occasion to rule that the application of different rates of port taxes according to whether the journey in question is domestic or intra-Community runs counter to the principle of freedom to provide services, being a restriction on access to shipping routes (see Commission v France, cited above, paragraphs 10 and 14).
22 Thus, Portuguese legislation on airport taxes must comply with the provisions of Regulation No 2408/92 as interpreted in the light of the general principle of freedom to provide services enshrined in Article 59 of the Treaty. Indeed, another purpose of that regulation is to define the conditions for applying that principle in the air transport sector, so that all matters of market access are dealt with in the same regulation (Case C-361/98 Italy v Commission [2001] ECR I-385, paragraph 32).
Restriction of the freedom to provide services
27 As far as the Commission's complaint is concerned, it is common ground that, whilst applying without distinction to all air transport operators, the provisions at issue do differentiate between domestic or regional flights and flights destined for other Member States. Under those provisions intra-Community flights attract a passenger service tax three times higher than that charged for national flights and a security tax twice that payable in respect of regional flights. Article 59 of the Treaty precludes the application of any national legislation that, without objective justification, restricts the freedom of a service provider to provide services and, in the perspective of the single market, the application of any national legislation which has the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (Commission v France, cited above, paragraphs 16 and 17).
28 Furthermore, the Court of Justice has had occasion to rule that a measure that makes the provision of cross-border services more onerous than that of comparable domestic services amounts to a restriction of the freedom to provide services (see Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 38). In the present case, the provisions at issue make the provision of cross-border services - such as the flight from Lisbon to Madrid - more costly than the provision of a comparable domestic service - such as the flight from Lisbon to Oporto - and they thus constitute a breach of the principle of freedom to provide services unless they are justified by compelling reasons of public interest and the measures enacted thereby are necessary and proportional.
36 Moreover, the arguments put forward by the Portuguese Government fail to show that there is any compelling reason of public interest that justifies the restriction of freedom to provide services created by a security tax rate that is approximately twice as high for intra-Community flights as for regional flights.