1 This request for a preliminary ruling concerns the interpretation of Article 9 of Regulation (EC) No 300/2008 of the European Parliament and of the Council of 11 March 2008 on common rules in the field of civil aviation security and repealing Regulation (EC) No 2320/2002 (OJ 2008 L 97, p. 72).
2 The request has been made in proceedings between Liège Airport Security SA, a public limited company, and the État belge (Belgian State) concerning a fine imposed by agents of the service public fédéral Intérieur (Home Affairs Federal Public Service, Belgium; ‘the Home Affairs FPS’) on Liège Airport Security following the finding of infringements of national regulations relating to private safety undertakings.
3 The Convention on International Civil Aviation, signed at Chicago on 7 December 1944 (United Nations Treaty Series, Vol. 15, No 102; ‘the Chicago Convention’) was ratified by all the Member States of the European Union, although the latter is not itself a party to that convention. That convention established the International Civil Aviation Organization (ICAO), whose objectives, as provided in Article 44 of that convention, are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport.
4 Annex 17 to the Chicago Convention, as amended by its twelfth edition of July 2022 (‘Annex 17 to the Chicago Convention’), is entitled ‘Aviation Security’. Chapter 1 of that annex, entitled ‘Definitions’, states: ‘Acts of unlawful interference. These are acts or attempted acts such as to jeopardise the safety of civil aviation, including but not limited to: - unlawful seizure of aircraft, - destruction of an aircraft in service, - hostage-taking on board aircraft or on aerodromes, - forcible intrusion on board an aircraft, at an airport or on the premises of an aeronautical facility, - introduction on board an aircraft or at an airport of a weapon or hazardous device or material intended for criminal purposes, - use of an aircraft in service for the purpose of causing death, serious bodily injury, or serious damage to property or the environment, - communication of false information such as to jeopardise the safety of an aircraft in flight or on the ground, of passengers, crew, ground personnel or the general public, at an airport or on the premises of a civil aviation facility. …’
5 Chapter 2 of Annex 17 to the Chicago Convention, entitled ‘General Principles’, includes Section 2.1, itself entitled ‘Objectives’, in which points 2.1.1 to 2.1.4 of that annex appear. In accordance with point 2.1.1 of that annex: ‘Each Contracting State shall have as its primary objective the safety of passengers, crew, ground personnel and the general public in all matters related to safeguarding against acts of unlawful interference with civil aviation.’
6 Chapter 3 of Annex 17 to the Chicago Convention, entitled ‘Organisation’, includes Section 3.1, itself entitled ‘National organisation and appropriate authority’, in which points 3.1.1 to 3.1.9 of that annex appear. Point 3.1.2 of that annex provides: ‘Each Contracting State shall designate and specify to ICAO an appropriate authority within its administration to be responsible for the development, implementation and maintenance of the national civil aviation security programme.’
7 Recitals 2, 5, 10, 12 and 25 of Regulation No 300/2008 are worded as follows: ‘(2) It is desirable, in the interests of civil aviation security generally, to provide the basis for a common interpretation of Annex 17 to the [Chicago Convention]. … (5) Given the need for more flexibility in adopting security measures and procedures in order to meet evolving risk assessments and to allow new technologies to be introduced, this Regulation should lay down the basic principles of what has to be done in order to safeguard civil aviation against acts of unlawful interference without going into the technical and procedural details of how they are to be implemented. … (10) Member States should also be allowed, on the basis of a risk assessment, to apply more stringent measures than those laid down in this Regulation. … (12) Even though, within a single Member State, there may be two or more bodies involved in aviation security, each Member State should designate a single authority responsible for the coordination and monitoring of the implementation of security standards. … (25) Since the objectives of this Regulation, namely to safeguard civil aviation against acts of unlawful interference and to provide a basis for a common interpretation of Annex 17 to the [Chicago Convention], cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives’.
8 Article 1 of that regulation, entitled ‘Objectives’, provides: ‘1. This Regulation establishes common rules to protect civil aviation against acts of unlawful interference that jeopardise the security of civil aviation. It also provides the basis for a common interpretation of Annex 17 to the [Chicago Convention]. 2. The means of achieving the objectives set out in paragraph 1 shall be: (a) the setting of common rules and common basic standards on aviation security; (b) mechanisms for monitoring compliance.’
9 Article 2 of that regulation, entitled ‘Scope’, provides in paragraph 1 thereof: ‘This Regulation shall apply to the following: (a) all airports or parts of airports located in the territory of a Member State that are not exclusively used for military purposes; (b) all operators, including air carriers, providing services at airports referred to in point (a); (c) all entities applying aviation security standards that operate from premises located inside or outside airport premises and provide goods and/or services to or through airports referred to in point (a).’
10 Article 3 of that regulation, entitled ‘Definitions’, is worded as follows: ‘For the purposes of this Regulation: 1. “civil aviation” means any air operation carried out by civil aircraft, excluding operations carried out by State aircraft referred to in Article 3 of the [Chicago Convention]; 2. “aviation security” means the combination of measures and human and material resources intended to safeguard civil aviation against acts of unlawful interference that jeopardise the security of civil aviation; … 8. “screening” means the application of technical or other means which are intended to identify and/or detect prohibited articles; 9. “security control” means the application of means by which the introduction of prohibited articles may be prevented; 10. “access control” means the application of means by which the entry of unauthorised persons or unauthorised vehicles, or both, may be prevented; …’
11 Under Article 4 of Regulation No 300/2008, entitled ‘Common basic standards’: ‘1. The common basic standards for safeguarding civil aviation against acts of unlawful interference that jeopardise the security of civil aviation shall be as laid down in the Annex. … 2. General measures, designed to amend non-essential elements of the common basic standards referred to in paragraph 1 by supplementing them, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 19(3). …’
12 Article 9 of that regulation, entitled ‘Appropriate authority’, provides: ‘Where, within a single Member State, two or more bodies are involved in civil aviation security, that Member State shall designate a single authority (hereinafter referred to as the appropriate authority) to be responsible for the coordination and monitoring of the implementation of the common basic standards referred to in Article 4.’
13 Article 10 of that regulation, entitled ‘National civil aviation security programme’, provides: ‘1. Every Member State shall draw up, apply and maintain a national civil aviation security programme. That programme shall define responsibilities for the implementation of the common basic standards referred to in Article 4 and shall describe the measures required by operators and entities for this purpose. 2. The appropriate authority shall make available in writing on a “need to know” basis the appropriate parts of its national civil aviation security programme to operators and entities which it deems to have a legitimate interest.’
14 Annex I to that regulation is entitled ‘Common basic standards for safeguarding civil aviation against acts of unlawful interference (Article 4)’ and describes those standards.
15 Article 4 of the loi du 2 octobre 2017 réglementant la sécurité privée et particulière (Law of 2 October 2017 on private safety) (Moniteur belge of 31 October 2017, p. 96776) (‘the Law on private safety’) provides: ‘Any undertaking which offers or performs security services or presents itself as such shall be regarded as a security undertaking.’
16 Article 14 of the Law on private safety provides: ‘This law shall apply to the exercise of the activities referred to in the present section or of the powers specified in the present law, even if an obligation to offer, exercise or organise such activities is laid down by European or specific legislation.’
17 The first paragraph of Article 16 of that law is worded as follows: ‘No one may offer security services or establish an internal security service without having obtained prior authorisation from the Minister for Home Affairs.’
18 The first paragraph of Article 76 of that law provides: ‘The persons referred to in points 1, 3, 4 and 5 of Article 60 must hold identification cards issued by the Minister for Home Affairs.’
19 Article 4ter of the Walloon Decree of 23 June 1994 on the creation and operation of airports and aerodromes under the jurisdiction of the Walloon Region (Moniteur belge of 15 July 1994, p. 18666), as amended by the Walloon Decree of 19 December 2007 (Moniteur belge of 31 December 2007, p. 65947), provides: ‘… § 2. Public service tasks relating to airport security and safety are to be entrusted to undertakings holding the concession for the operation of airports, in accordance with the detailed rules laid down in the concession contract and the related tender specifications, without prejudice to the third subparagraph of the present paragraph and paragraphs 3 to 5. For the purposes of this article, 1° security tasks mean all measures and human and material resources intended to protect civil aviation against acts of unlawful interference. 2° safety tasks mean all measures and human and material resources intended to ensure the safe flow of civil air traffic, except for measures or resources intended to protect civil aviation against acts of unlawful interference. The administrative authorities are responsible for monitoring the proper performance of the concession, in particular as regards the performance of security and safety tasks. The administrative procedures for monitoring the proper performance of the concession are described in the concession agreements and in the related tender specifications. § 3. A public limited company is to be created for every airport, with 49% of the share capital owned by the undertaking holding the concession to operate the airport and 51% owned by the Walloon Region (Belgium). The operating company is to delegate security tasks to that public limited company, which, in the case of Brussels South Charleroi Airport, is called Brussels South Charleroi Airport-Security and, in the case of Liège-Bierset Airport, is called Liège Airport-Security. The Companies Code and its implementing decrees apply to Brussels South Airport-Security and to Liège Airport-Security, except for derogations contained in this decree. The acts of Brussels South Charleroi Airport-Security and Liège Airport-Security are deemed commercial, within the meaning of Articles 2 and 3 of the Companies Code. …’
20 Liège Airport Security was established by the Walloon Region (Belgium) and by Liège Airport SA, the operating company of Liège-Bierset Airport (Belgium), to carry out, at that airport, ‘security tasks’ within the meaning of Article 4ter(2) of the Walloon Decree of 23 June 1994 on the creation and operation of airports and aerodromes under the jurisdiction of the Walloon Region, as amended by the Walloon Decree of 19 December 2007.
21 On 16 March 2018, agents of the Home Affairs FPS attended that airport to carry out an inspection in relation to compliance with the Law on private safety. In the course of that inspection, they found that two agents of Liège Airport Security were engaged in activities coming under tasks specific to private safety within the meaning of the Law on private safety, namely, for the first, control of access by passengers to the runways using a metal detector, and, for the second, inspection of checkpoints and control staff.
22 Three infringement notices were thus issued, one against Liège Airport Security for establishing an internal private security service without authorisation from the Minister for Home Affairs, in breach of the first paragraph of Article 16 of the Law on private safety, and the other two against each of those agents for carrying out activities relating to such a service without holding the identification card required under the first paragraph of Article 76 of that law.
23 By administrative decisions of 27 November 2020 and 11 March 2021, the Home Affairs FPS imposed, respectively, a fine of EUR 15000 on Liège Airport Security and a fine of EUR 500 on each of those agents.
24 Liège Airport Security challenged those three administrative decisions before the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium), arguing that the Home Affairs FPS was not competent to inspect Belgian airports nor to impose fines on Liège Airport Security and its agents. It claims that the direction générale du transport aérien (Directorate-General for Air Transport; ‘the DGTA’), which is part of the service public fédéral Mobilité et Transport (Mobility and Transport Federal Public Service, Belgium), enjoys exclusive competence for the coordination and monitoring of the implementation of the common basic standards on civil aviation security within the meaning of Article 9 of Regulation No 300/2008. Consequently, by placing the safety services of a national airport under the control of the Home Affairs FPS, the Kingdom of Belgium infringed its obligation, provided for in that provision, to designate only a single appropriate competent authority.
25 Since the court of first instance dismissed the challenge brought by Liège Airport Security by judgment of 25 February 2022, that company filed an appeal on a point of law against that decision before the Cour de cassation (Court of Cassation, Belgium), which is the referring court.
26 In that appeal on a point of law, Liège Airport Security maintains, inter alia, that the Home Affairs FPS is not competent to monitor the private safety services which it provides, nor to impose penalties on it in that context, since, under Article 9 of Regulation No 300/2008, only a single appropriate authority is to be appointed for that purpose in each Member State. If Article 14 of the Law on private safety were to be interpreted as allowing the Belgian State to derogate from that obligation, it should be disapplied as being incompatible with EU law.
27 The referring court notes that the judgment which is the subject of the appeal on a point of law is based, in particular, on the legal ground that Article 9 of Regulation No 300/2008 seeks to require Member States to designate a single appropriate authority, not to be solely responsible for all matters relating to airport safety, but to ensure the coordination of all measures necessary for the safety of an airport and that the safety measures imposed by EU law are actually applied at national airports, without however being responsible for ensuring compliance with all the relevant regulations. In the present case, the DGTA is therefore not competent to ensure compliance with all the rules applicable to workers employed at national airports, such as employment law rules or those relating to private safety, otherwise, in addition to the private safety undertakings which provide their services at national airports, that authority would have under its supervision police and customs officers simply because they also work there.
28 In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 9 of Regulation [No 300/2008] to be interpreted as meaning that the appropriate authority designated under that provision is to monitor the implementation of the common basic standards referred to in Article 4 [of that regulation], to the exclusion of any other authority, only where those standards are laid down by regulations specific to civil aviation security?’
29 It is apparent from the request for a preliminary ruling that the question referred seeks to determine whether, in the present case, Liège Airport Security and two of its employees, who carried out security tasks at Liège-Bierset Airport, such as controlling access by passengers to the runways and inspecting checkpoints and control staff, could legally be subject to control by an authority other than the DGTA, namely the Home Affairs FPS, under the Law on private safety, and subsequently be fined by the latter authority for failure to comply with that law, even though only the DGTA was designated by the Kingdom of Belgium as the ‘appropriate authority’, within the meaning of Article 9 of Regulation No 300/2008, to be responsible for coordinating and monitoring the implementation of the common basic standards referred to in Article 4 of that regulation.
30 Thus, the view should be taken that, by its question, the referring court is asking, in essence, whether Article 9 of Regulation No 300/2008 must be interpreted as precluding an authority other than the ‘appropriate authority’ designated under that provision from being responsible for monitoring whether a legal person, governed by private law, and its employees, who carry out security tasks at a national airport, comply with the obligations arising from national regulations governing the exercise of private safety activities.
31 It should be borne in mind that, according to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 16 March 2023, Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System and Commission, C‑439/20 P and C‑441/20 P, EU:C:2023:211, paragraph 113 and the case-law cited).
32 First of all, it should be noted that, under Article 9 of Regulation No 300/2008, where, within a single Member State, ‘two or more bodies are involved in civil aviation security’, that Member State is to designate a single authority, referred to as ‘the appropriate authority’, to be responsible for ‘the coordination and monitoring of the implementation’ of the common basic standards referred to in Article 4 of that regulation.
33 It is thus apparent from the wording of that provision, first, that, within a Member State, it is possible that a number of bodies may be responsible for civil aviation security, an area which, in accordance with the first subparagraph of Article 1(1) of Regulation No 300/2008, read in conjunction with Article 3(2) of that regulation, covers activities intended to safeguard civil aviation against acts of unlawful interference that jeopardise the security of civil aviation. Such a possibility is, moreover, expressly referred to in recital 12 of that regulation.
34 Secondly, Member States must, in cases where more than one national body is concerned, designate an ‘appropriate authority’ to be responsible for coordinating and monitoring the implementation of the common basic standards referred to in Article 4 of Regulation No 300/2008.
35 It is therefore apparent from the wording of Article 9 of that regulation that the appropriate authority referred to in that provision differs from other national bodies competent in civil aviation security in that it is responsible for ensuring, at national level, the coordination and monitoring of compliance with the relevant common basic standards referred to in Article 4 of that regulation.
36 Consequently, provided that they respect the powers of the appropriate authority designated under Article 9 of Regulation No 300/2008, relating to the coordination and monitoring of the implementation of the common standards referred to in Article 4 of that regulation, it does not follow from a literal interpretation of Article 9 that a Member State should ensure that that authority is the only one to be responsible for monitoring compliance with all aspects relating to the field of civil aviation security at national level.
37 Next, as regards the objectives pursued by Regulation No 300/2008, it should be noted, first, that, under Article 1 of that regulation, read in the light, in particular, of recitals 5 and 10 thereof, one of those objectives is to establish common rules to protect civil aviation against acts of unlawful interference that jeopardise the security of civil aviation, by setting common basic standards on aviation security and mechanisms for monitoring compliance, while leaving the Member States a certain degree of flexibility as to the arrangements for implementing those common rules.
38 Secondly, the second subparagraph of Article 1(1) of Regulation No 300/2008 stipulates that that regulation is to provide, for the Member States, the basis for a common interpretation of Annex 17 to the Chicago Convention, while that common interpretation constitutes the second objective pursued by that regulation, as is apparent from recitals 2 and 25 thereof. However, point 3.1.2 of that annex merely states that each Contracting State must designate an appropriate authority within its national administration to be responsible for the development, implementation and maintenance of the national civil aviation security programme, without requiring those States to entrust all powers in the field of civil aviation security to a single national authority.
39 It follows that Regulation No 300/2008 is not intended to govern the allocation of responsibilities within Member States for the implementation of the common basic standards referred to in Article 4 of that regulation, nor a fortiori to compel those States to entrust all responsibilities concerning civil aviation security to a single national authority.
40 Lastly, as regards the context in which Article 9 of Regulation No 300/2008 occurs, it should be noted that Article 10(1) of that regulation provides that every Member State is to define, in the national civil aviation security programme which it must draw up, the responsibilities for the implementation of the common basic standards referred to in Article 4 thereof. That provision thus supports the finding in paragraph 39 of the present judgment that Regulation No 300/2008 is not intended to govern the allocation of responsibilities within Member States for the implementation of those standards.
41 It follows from the foregoing, as the Advocate General noted, in essence, in points 48, 50 and 58 of his Opinion, that Article 9 of Regulation No 300/2008, while allowing more than one body to be responsible for civil aviation security in the same Member State, is limited to requiring each Member State to designate a single authority on which it confers responsibility for coordinating and monitoring the implementation, on national territory, of the common basic standards referred to in Article 4 of that regulation.
42 In the present case, inspections such as those carried out by the Home Affairs FPS do not, as such, fall within the exercise of a power which must necessarily be reserved to an appropriate authority designated under Article 9 of Regulation No 300/2008, in so far as they are not intended to ensure the coordination or monitoring of the implementation of the common basic standards within the meaning of Article 4 of that regulation, but to check that the persons concerned carry out their tasks in accordance with the specific requirements arising from national legislation governing the exercise of private safety activities.
43 While that national regulation, and the requirements arising from it, may be considered to be indirectly related to civil aviation security where the private safety undertakings concerned and their agents provide their services at an airport, the fact remains that it is a regulation of a general nature, which does not only relate to civil aviation security and whose specific subject matter is not the implementation of the common basic standards referred to in Article 4 of Regulation No 300/2008.
44 It follows that, where a national authority, such as, in the present case, the Home Affairs FPS, is empowered to ensure compliance with the obligations arising from such regulations and to carry out checks for that purpose, or even to impose financial penalties in the event of an infringement, it cannot be considered, even where those checks relate to activities carried out at an airport, that that authority is therefore responsible for coordinating and monitoring the implementation of those common basic standards within the meaning of Article 9 of Regulation No 300/2008.
45 In the light of the foregoing, the answer to the question referred is that Article 9 of Regulation No 300/2008 must be interpreted as not precluding an authority other than the ‘appropriate authority’ designated under that provision from being responsible for monitoring whether a legal person, governed by private law, and its employees, who carry out security tasks at a national airport, comply with the obligations arising from national regulations governing the exercise of private safety activities.
46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.