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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Flightline (Transport) [2002] EUECJ C-181/00 (09 July 2002) URL: http://www.bailii.org/eu/cases/EUECJ/2002/C18100.html Cite as: [2002] EUECJ C-181/00, [2002] EUECJ C-181/ |
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JUDGMENT OF THE COURT (Sixth Chamber)
9 July 2002 (1)
(Articles 3(2) and 4(1)(a) and (d) of Regulation (EEC) No 2408/92 - Imposition of public service obligations on scheduled air services serving a peripheral region - Compatibility with Member States' power to restrict cabotage until 1 April 1997 - Interpretation of Article 1(e) of Decision 94/698/EC)
In Case C-181/00,
REFERENCE to the Court under Article 234 EC by the Supremo Tribunal Administrativo (Portugal) for a preliminary ruling in the proceedings pending before that court between
Flightline Ltd
and
Secretário de Estado dos Transportes e Communicações,
Transportes Aéreos Portugueses SA (TAP),
on the interpretation of Articles 3(2) and 4(1)(a) and (d) of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes (OJ 1992 L 240, p. 8) and Article 1(e) of Commission Decision 94/698/EC of 6 July 1994 concerning increase in capital, credit guarantees and tax exemption in favour of TAP (Transportes Aéreos Portugueses) (OJ 1994 L 279, p. 29),
THE COURT (Sixth Chamber),
composed of: F. Macken (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, V. Skouris and J.N. Cunha Rodríguez, Judges,
Advocate General: S. Alber,
Registrar: H.A. Rühl, Principal Administrator,
after considering the written observations submitted on behalf of:
- Flightline Ltd, by J.L. Mota de Campos, advogado,
- Transportes Aéreos Portugueses SA (TAP), by J.N. Barata, advogado,
- the Portuguese Government, by L. Fernandes and A. Pato, acting as Agents,
- the Commission of the European Communities, by M. Afonso, M. Huttunen and D. Triantafyllou, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Flightline Ltd, Transportes Aéreos Portugueses SA (TAP), the Portuguese Government and the Commission at the hearing on 5 July 2001,
after hearing the Opinion of the Advocate General at the sitting on 27 September 2001,
gives the following
Legal background and Decision 94/698
'Airports in the Greek islands and in the Atlantic islands comprising the autonomous region of the Azores shall be exempted from the application of this Regulation until 30 June 1993. Unless otherwise decided by the Council, on a proposal from the Commission, this exemption shall apply for a further period of five years and may be continued for five years thereafter.
'1. Subject to this Regulation, Community air carriers shall be permitted by the Member State(s) concerned to exercise traffic rights on routes within the Community.
2. Notwithstanding paragraph 1, before 1 April 1997 a Member State shall not be required to authorise cabotage traffic rights within its territory by Community air carriers licensed by another Member State, unless:
(i) the traffic rights are exercised on a service which constitutes and is scheduled as an extension of a service from, or as a preliminary of a service to, the State of registration of the carrier;
(ii) the air carrier does not use, for the cabotage service, more than 50% of its seasonal capacity on the same service of which the cabotage service constitutes the extension or the preliminary.
'(a) A Member State, following consultations with the other Member States concerned and after having informed the Commission and air carriers operating on the route, may impose a public service obligation in respect of scheduled air services to an airport serving a peripheral or development region in its territory or on a thin route to any regional airport in its territory, any such route being considered vital for the economic development of the region in which the airport is located, to the extent necessary to ensure on that route the adequate provision of scheduled air services satisfying fixed standards of continuity, regularity, capacity and pricing, which standard air carriers would not assume if they were solely considering their commercial interest. The Commission shall publish the existence of this public service obligation in the Official Journal of the European Communities.
...
(d) If no air carrier has commenced or is about to commence scheduled air services on a route in accordance with the public service obligation which has been imposed on that route, then the Member State may limit access to that route to only one air carrier for a period of up to three years, after which the situation shall be reviewed. The right to operate such services shall be offered by public tender either singly or for a group of such routes to any Community air carrier entitled to operate such air services. The invitation to tender shall be published in the Official Journal of the European Communities and the deadline for submission of tenders may not be earlier than one month after the day of publication. The submissions made by air carriers shall forthwith be communicated to the other Member States concerned and to the Commission.
- confirmed that the liberalisation of the non-scheduled transport between all Community airports and the Archipelago of the Azores, refers to all the services, as expressed in Regulation (EEC) No 2408/92, including the seat-only charter and one-way charter. This means that these types of air services will be authorised notwithstanding that the Azores are temporarily excluded from the application of Regulation (EEC) No 2408/92,
- reaffirmed its determination and willingness to follow in 1995 a public tender procedure for the connections between the Portuguese mainland and the islands of Madeira and the Azores in accordance with Article 4 of Regulation (EEC) No 2408/92. Moreover, it is the intention of Portugal to inform the Commission during the first half of 1995 about the contents of the obligations of these public services, in order that they may be published in the Official Journal of the European Communities. In that respect the Commission recalls that Article 4 of that Regulation means that the contents of the public service obligations are to be separately published in the Official Journal of the European Communities. Following publication, should no European carrier declare its readiness to fulfil these public service obligations, the right to operate such services shall be offered by public tender either singly or for a group of such routes to any European air carrier entitled to operate such air services.
The main proceedings and the questions referred
'(1) Does the exercise by a Member State of the rights and powers provided for by Article 4 of Council Regulation (EEC) No 2408/92 of 23 July 1992 presuppose or mean that the power provided for in Article 3(2) of that Regulation of that Member State to be able to restrict, until 1 April 1997, competition in cabotage services within its territory is necessarily waived?
(2) May a Member State in a public tender procedure organised in 1995 for the provision of scheduled air services on a route subject to public service obligations imposed on such a route under Article 4 of the Regulation require air carriers licensed by another Member State which submit bids to meet the conditions laid down in Article 3(2) of that same Regulation?
(3) Must Article 1(e) of Commission Decision 94/698/EC be interpreted as meaning that, by making approval of the aid for which it provides subject to the condition that Portugal honour the undertaking to apply Article 4 of Regulation (EEC) No 2408/92 to the Autonomous Regions, with effect from 1 January 1996, by publishing the public service obligations for the individual routes in question (pursuant to Chapter VIII, point 3), Portugal is precluded from exercising the power granted to Member States by Article 3(2) of the Regulation?
Admissibility
The first question
The second question
The third question
Costs
46. The costs incurred by the Portuguese Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Supremo Tribunal Administrativo by judgment of 13 April 2000, hereby rules:
1. The exercise by a Member State of the rights and powers laid down in Article 4 of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes does not presuppose or mean that that Member State must waive its right under Article 3(2) of that regulation to restrict competition until 1 April 1997 in cabotage services within its territory.
2. In a public tender procedure organised in 1995 for the provision of scheduled air services on a route subject to public service obligations imposed on that route under Article 4 of Regulation No 2408/92, a Member State was entitled to require air carriers licensed by another Member State which submitted bids to meet the conditions laid down in Article 3(2) of that regulation, provided that the invitation to tender did not continue to have effect beyond 1 April 1997.
3. Article 1(e) of Commission Decision 94/698/EC of 6 July 1994 concerning increase in capital, credit guarantees and tax exemption in favour of TAP, which makes approval of the aid for which it provides subject to the condition that the Portuguese Republic honour its undertaking to applyArticle 4 of Regulation No 2408/92 to the autonomous regions of Madeira and the Azores with effect from 1 January 1996 at the latest and publish the public service obligations for the routes in question, does not preclude that Member State from exercising its right under Article 3(2) of that regulation.
Macken
SkourisCunha Rodrigues
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Delivered in open court in Luxembourg on 9 July 2002.
R. Grass F. Macken
Registrar President of the Sixth Chamber
1: Language of the case: Portuguese.