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Reports of Cases Report s of C ases OPINION OF ADVOCATE GENERAL JÄÄSKINEN 1 delivered on 13 September 2012 Case C-547/10 P Swiss Confederation v European Commission (Appeal — Actions for annulment — Swiss Confederation — Admissibility — Locus standi — Examination of the Court’s own motion — EC-Switzerland Agreement on Air Transport — Objectives of the agreement — Exchange of traffic rights — Regulation (EEC) No 2408/92 — Access of Community air carriers to intra-Community air routes — Articles 8 and 9 — Scope — Commission’s powers of review — Exercise of traffic rights — Decision 2004/12/EC — German measures relating to the approaches to Zurich Airport — Principles inherent in the freedom to provide services — Principle of non-discrimination — Proportionality) I – Introduction 1. The appeal brought by the Swiss Confederation seeks to have set aside the judgment of the General 2 Court of the European Union of 9 September 2010 (‘the judgment under appeal’). The General Court 3 dismissed the action brought by the Swiss Confederation for the annulment of Decision 2004/12/EC on a procedure relating to the application of Article 18(2), first sentence, of the Agreement between 4 the European Community and the Swiss Confederation on Air Transport (‘the Air Transport 5 Agreement’) and Regulation (EEC) No 2408/92 . By that decision, the Commission found that the Federal Republic of Germany could continue to apply the national measures which were the subject of the decision at issue, which aimed to establish procedures for landings and take-offs at Zurich Airport (Switzerland). 1 — Original language: French. 2 — Case T-319/05 [2010] ECR II-4265. 3 — Commission Decision of 5 December 2003 on a procedure relating to the application of Article 18(2), first sentence, of the Agreement between the European Community and the Swiss Confederation on air transport and Council Regulation (EEC) No 2408/92 (OJ 2004 L 4, p. 13, ‘the contested decision’). 4 — The Agreement was signed on 21 June 1999 in Luxembourg and approved on behalf of the Community by Decision 2002/309/EC, Euratom of the Council and of the Commission as regards the Agreement on Scientific and Technological Cooperation of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L 114, p. 1). The seven agreements concern the free movement of persons, air transport, the carriage of goods and passengers by rail and road, trade in agricultural products, mutual recognition in relation to conformity assessment, certain aspects of government procurement, and scientific and technological cooperation. 5 — 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, ‘the Access Regulation’). EN ECLI:EU:C:2012:565 1 OPINION OF MR JÄÄSKINEN — CASE C-547/10 P SWITZERLAND v COMMISSION 2. The present case is unprecedented in more than one respect. First, it is the first action for annulment brought by the Swiss Confederation before the judicature of the European Union. The case therefore provides the Court with an opportunity to give a ruling on the question of whether non-member States having a particular legal relationship with the European Union may bring actions for annulment before the European Union judicature and, if so, on what conditions. That is a 6 question which has not yet received a reply in the present case because neither the Court of Justice nor the General Court has expressed an opinion on the procedural status of the Swiss Confederation. 3. Secondly, the case enables the Court to interpret the provisions of the Air Transport Agreement and those of the Access Regulation, as well as to express a view on the connections between those two instruments. The questions raised by the Swiss Confederation’s appeal concern, in essence, the scope of Articles 8 and 9 of the Access Regulation and of the Commission’s powers of review under that regulation. Consequently the present case also invites the Court to interpret the substantive rules laid down by those provisions in relation to the principle of the freedom to provide services, the principle of non-discrimination and the principle of proportionality in the particular context of the Air Transport Agreement. II – Legal context A – The Air Transport Agreement 4. Article 1 of the Air Transport Agreement is worded as follows: ‘1. This Agreement sets out rules for the Contracting Parties in the field of civil aviation. These provisions are without prejudice to those contained in the EC Treaty … as well as under all relevant Community legislation listed in the Annex to this Agreement. 2. For this purpose, the provisions laid down in this Agreement as well as in the regulations and directives specified in the Annex shall apply under the conditions set out hereafter. Insofar as they are identical in substance to corresponding rules of the EC Treaty and to acts adopted in application of that Treaty, those provisions shall, in their implementation and application, be interpreted in conformity with the relevant rulings and decisions of the Court of Justice and the Commission … given prior to the date of signature of this Agreement. The rulings and decisions given after the date of signature of this Agreement shall be communicated to [the Swiss Confederation]. At the request of one of the Contracting Parties, the implications of such latter rulings and decisions shall be determined by the Joint Committee in view of ensuring the proper functioning of this Agreement.’ 5. Article 2 of the Agreement states that the provisions of the Agreement and its Annex are to apply to the extent that they concern air transport or matters directly related to air transport as mentioned in the Annex to the Agreement. 6. Under Article 3 of the Agreement, within the scope of the Agreement any discrimination on grounds of nationality is prohibited. 7. Article 15(1) of the Agreement provides, subject to the Access Regulation, that traffic rights are granted to Community and Swiss air carriers between any point in Switzerland and any point in the Community. 6 — Order of 14 July 2005 in Case C-70/04 Switzerland v Commission transferring the case to the General Court. 2 ECLI:EU:C:2012:565 OPINION OF MR JÄÄSKINEN — CASE C-547/10 P SWITZERLAND v COMMISSION 8. Article 18(2) of the Agreement provides: ‘In cases which may affect air services to be authorised under Chapter 3, the Community institutions shall enjoy the powers granted to them under the provisions of the regulations and directives whose application is explicitly confirmed in the Annex. …’ 9. Under Article 19(2) of the Agreement, whenever the Community institutions act under the powers granted to them by the Agreement on matters which are of interest to the Swiss Confederation and which concern the Swiss authorities or Swiss undertakings, the Swiss authorities are to be fully informed and given the opportunity to comment before a final decision is taken. 10. Under Article 20 of the Agreement, all questions concerning the validity of decisions of the institutions of the Community taken on the basis of their competences under the Agreement are of the exclusive competence of the Court of Justice. 11. According to the provisions of the Annex to the Agreement, wherever acts specified in the Annex contain references to Member States of the European Community, or a requirement for a link with the latter, the references shall, for the purpose of the Agreement, be understood to apply equally to the Swiss Confederation or to the requirement of a link with the Swiss Confederation. The Annex refers, inter alia, to the Access Regulation. B – The Access Regulation 12. Article 2(f) of the Access Regulation defines ‘traffic right’, for the purposes of that regulation, as ‘the right of an air carrier to carry passengers, cargo and/or mail on an air service between two Community airports’. 13. Article 3(1) of the Access Regulation provides as follows: ‘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.’ 14. In accordance with Article 8 of the Access Regulation: ‘… 2. The exercise of traffic rights shall be subject to published Community, national, regional or local operational rules relating to safety, the protection of the environment and the allocation of slots. 3. At the request of a Member State or on its own initiative the Commission shall examine the application of paragraphs 1 and 2 and, within one month of receipt of a request and after consulting the Committee referred to in Article 11, decide whether the Member State may continue to apply the measure. The Commission shall communicate its decision to the Council and to the Member States. …’ 15. Article 9 of the Access Regulation provides as follows: ‘1. When serious congestion and/or environmental problems exist the Member State responsible may, subject to this Article, impose conditions on, limit or refuse the exercise of traffic rights, in particular when other modes of transport can provide satisfactory levels of service. ECLI:EU:C:2012:565 3 OPINION OF MR JÄÄSKINEN — CASE C-547/10 P SWITZERLAND v COMMISSION 2. Action taken by a Member State in accordance with paragraph 1 shall: — be non-discriminatory on grounds of nationality or identity of air carriers, … — not be more restrictive than necessary in order to relieve the problems. 3. When a Member State considers that action under paragraph 1 is necessary it shall, at least three months before the entry into force of the action, inform the other Member States and the Commission, providing adequate justification for the action. … 4. At the request of a Member State or on its own initiative the Commission shall examine action referred to in paragraph 1.
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