Encyclopaedia of International Aviation Law: Volume 4 English and French Version Version Englaise Et Française 2013 Edition

By Philip Forsang Ndikum and Serge-Delors Ndikum

The four volumes of the Encyclopaedia of International Aviation Law are
intended for students, lawyers, judges, scholars and readers of all
backgrounds with an interest in Aviation Law; and to provide the
definitive corpus of relevant national and regional legislation, including
global aviation treaties and legislation to enable all readers without
exception, to develop the background, knowledge and tools to understand
local, regional and international Aviation Law in contextual fashion.

The first volume has a detailed text of country legislation, including
national cases and materials whilst the second, third and fourth volumes
focus on International Aviation Law Treaties, international cases and
materials and Aircraft Refueling Indemnity (TAR BOX) Agreements.

• Language: English
• Publisher: Trafford Publishing
• Release date: May 23, 2013
• ISBN: 9781466994546

Philip Forsang Ndikum

Philip Forsang Ndikum is a barrister-at-law in England and Wales, called from the Honourable Society of Lincoln’s Inn, London, and a barrister and solicitor of the Supreme Court of Cameroon, called from the Court of Appeals, Douala, Cameroon, Africa. He is founder of Ndikum Law Group: Ndikum Law Offices Limited, England, United Kingdom; Ndikum Law Offices, Douala, Cameroon, Africa; and Ndikum Publications, London, England. He was a research and graduate assistant at the University of Minnesota Human Rights Center. He clerked (foremost LLM Program, University of Minnesota, USA) for the Honorable Judge Nancy D. Dreher, United States Bankruptcy Court, Minneapolis, Minnesota, USA. He has worked in law firms in Douala, Cameroon; Paris, France; England, United Kingdom; and Minnesota, USA. He is currently a lecturer in OHADA law at the Cameroon-European Union Cooperation Programme d’Appui au Secteur de la Justice (PAJ). Serge-Delors Ndikum is a member of the LLB honors class of 2013 at the University of Southampton School of Law. Furthermore, he was awarded honors in French civil law at Université Paris-Sud XI, Faculté Jean Monnet. He is the international consultant at Ndikum Law Offices, Douala, Cameroon, and heads the European operations and aviation law department of the firm. Serge has gained considerable international experience working in law firms in Douala, Cameroon, and England, United Kingdom.

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© Copyright 2013, 2014 Philip Forsang Ndikum.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the written prior permission of the author.

ISBN: 978-1-4669-9453-9 (sc)

ISBN: 978-1-4669-9456-0 (hc)

ISBN: 978-1-4669-9454-6 (e)

Library of Congress Control Number: 2013908942

Trafford rev. 06/06/2014

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CONTENTS

EUROPEAN UNION CASE LAW

IN CASE T-260/94

[234s(Air transport — Continuation of an exclusive concession on domestic routes —Regulation (EEC) No 2408/92 — Articles 5 and 8 — Rights of the defence — Audialteram partem — Principle of good faith — Principle of proportionality — Article90(2) of the EC Treaty)[s

APPLICATION for annulment of Article 1 of Commission Decision 94/291/EC of27 April 1994 on a procedure relating to the application of Council Regulation(EEC) No 2408/92 (Case VII/AMA/IV/93 — TAT — Paris (Orly)-Marseille and Paris(Orly)-Toulouse) (OJ 1994 L 127,

DANS L’AFFAIRE T-260/94

[234s«Transports aériens — Maintien d’une concession exclusive sur des liaisons intérieures — Règlement (CEE) n° 2408/92 — Articles 5 et 8 — Droits de la défense — Principe du contradictoire — Principe de bonne foi — Principe de proportionnalité — Article 90, paragraphe 2, du traité CE»[s

ayant pour objet une demande d’annulation de l’article 1er de la décision 94/291/CE de la Commission, du 27 avril 1994, relative à une procédure d’application du règlement (CEE) n° 2408/92 du Conseil [Affaire VII/AMA/IV/93 — TAT — Paris (Orly)-Marseille et Paris (Orly)-Toulouse] (JO L 127, p. 32),

IN CASE C-476/98

(Failure by a Member State to fulfil its obligations—Conclusion and application by a Member State of a bilateral ‘open skies’ agreement with the United States of America—Secondary legislation governing the internal air transport market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/92, 2409/92 and 95/93)—External competence of the Community—Article 52 of the EC Treaty (now, after amendment, Article 43 EC)—Article 5 of the EC Treaty (now Article 10 EC))

DANS L’AFFAIRE C-476/98

«Manquement d’État—Conclusion et application par un État membre d’un accord bilatéral dit ‘de ciel ouvert’ avec les États-Unis d’Amérique—Droit dérivé régissant le marché intérieur du transport aérien [règlements (CEE) nos 2299/89, 2407/92, 2408/92, 2409/92 et 95/93]—Compétence externe de la Communauté—Article 52 du traité CE (devenu, après modification, article 43 CE)—Article 5 du traité CE (devenu article 10 CE)»

IN CASE C-475/98

(Failure by a Member State to fulfil its obligations—Conclusion and application by a Member State of a bilateral ‘open skies’ agreement with the United States of America—Secondary legislation governing the internal air transport market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/92, 2409/92 and 95/93)—External competence of the Community—Article 52 of the EC Treaty (now, after amendment, Article 43 EC)—Article 5 of the EC Treaty (now Article 10 EC))

DANS L’AFFAIRE C-475/98

«Manquement d’État—Conclusion et application par un État membre d’un accord bilatéral dit ‘de ciel ouvert’ avec les États-Unis d’Amérique—Droit dérivé régissant le marché intérieur du transport aérien [règlements (CEE) nos 2299/89, 2407/92, 2408/92, 2409/92 et 95/93]—Compétence externe de la Communauté—Article 52 du traité CE (devenu, après modification, article 43 CE)—Article 5 du traité CE (devenu article 10 CE)»

IN CASE C-471/98

(Failure by a Member State to fulfil its obligations—Conclusion and application by a Member State of a bilateral ‘open skies’ agreement with the United States of America—Secondary legislation governing the internal air transport market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/92, 2409/92 and 95/93)—External competence of the Community—Article 52 of the EC Treaty (now, after amendment, Article 43 EC)—Article 5 of the EC Treaty (now Article 10 EC))

DANS L’AFFAIRE C-471/98

«Manquement d’État—Conclusion et application par un État membre d’un accord bilatéral dit ‘de ciel ouvert’ avec les États-Unis d’Amérique—Droit dérivé régissant le marché intérieur du transport aérien [règlements (CEE) nos 2299/89, 2407/92, 2408/92, 2409/92 et 95/93]—Compétence externe de la Communauté—Article 52 du traité CE (devenu, après modification, article 43 CE)—Article 5 du traité CE (devenu article 10 CE)»

IN CASE C-469/98

(Failure by a Member State to fulfil its obligations—Conclusion and application by a Member State of a bilateral ‘open skies’ agreement with the United States of America—Secondary legislation governing the internal air transport market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/92, 2409/92 and 95/93)—External competence of the Community—Article 52 of the EC Treaty (now, after amendment, Article 43 EC)—Article 5 of the EC Treaty (now Article 10 EC))

DANS L’AFFAIRE C-469/98

«Manquement d’État—Conclusion et application par un État membre d’un accord bilatéral dit ‘de ciel ouvert’ avec les États-Unis d’Amérique—Droit dérivé régissant le marché intérieur du transport aérien [règlements (CEE) nos 2299/89, 2407/92, 2408/92, 2409/92 et 95/93]—Compétence externe de la Communauté—Article 52 du traité CE (devenu, après modification, article 43 CE)—Article 5 du traité CE (devenu article 10 CE)»

IN CASE C-468/98

(Failure by a Member State to fulfil its obligations—Conclusion and application by a Member State of a bilateral ‘open skies’ agreement with the United States of America—Secondary legislation governing the internal air transport market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/92, 2409/92 and 95/93)—External competence of the Community—Article 52 of the EC Treaty (now, after amendment, Article 43 EC)—Article 5 of the EC Treaty (now Article 10 EC))

DANS L’AFFAIRE C-467/98

«Manquement d’État—Conclusion et application par un État membre d’un accord bilatéral dit ‘de ciel ouvert’ avec les États-Unis d’Amérique—Droit dérivé régissant le marché intérieur du transport aérien [règlements (CEE) nos 2299/89, 2407/92, 2408/92, 2409/92 et 95/93]—Compétence externe de la Communauté—Article 52 du traité CE (devenu, après modification, article 43 CE)—Article 5 du traité CE (devenu article 10 CE)» 402

IN CASE C-467/98

(Failure by a Member State to fulfil its obligations—Conclusion and application by a Member State of a bilateral ‘open skies’ agreement with the United States of America—Secondary legislation governing the internal air transport market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/92, 2409/92 and 95/93)—External competence of the Community—Article 52 of the EC Treaty (now, after amendment, Article 43 EC)—Article 5 of the EC Treaty (now Article 10 EC))

DANS L’AFFAIRE C-467/98

«Manquement d’État—Conclusion et application par un État membre d’un accord bilatéral dit ‘de ciel ouvert’ avec les États-Unis d’Amérique—Droit dérivé régissant le marché intérieur du transport aérien [règlements (CEE) nos 2299/89, 2407/92, 2408/92, 2409/92 et 95/93]—Compétence externe de la Communauté—Article 52 du traité CE (devenu, après modification, article 43 CE)—Article 5 du traité CE (devenu article 10 CE)»

IN CASE C-361/98

(Council Regulation (EEC) No 2408/92—Application for annulment of Commission Decision 98/710/EC—Distribution of air traffic between the airports of Milan—’Malpensa 2000’)

DANS L’AFFAIRE C-361/98

«Règlement (CEE) n° 2408/92 du Conseil—Demande en annulation de la décision 98/710/CE de la Commission—Répartition du trafic aérien entre les aéroports de Milan—Malpensa 2000»

IN CASE C-494/99

(Failure by a Member State to fulfil its obligations—Failure to transpose Directive 94/56/EC)

DANS L’AFFAIRE C-494/99

«Manquement d’État—Non-transposition de la directive 94/56/CE»

IN CASE C-181/00

(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)

DANS L’AFFAIRE C-181/00

«Articles 3, paragraphe 2, et 4, paragraphe 1, sous a) et d), du règlement (CEE) n° 2408/92—Imposition d’obligations de service public sur les services aériens réguliers desservant une zone périphérique—Compatibilité avec la faculté des États membres de restreindre, jusqu’au 1er avril 1997, le cabotage—Interprétation de l’article 1er, sous e), de la décision 94/698/CE»

IN JOINED CASES C-27/00 AND C-122/00

(Regulation (EC) No 925/1999—Noise emissions of aeroplanes—Prohibition of re-engined aeroplanes with engines with a by-pass ratio of less than 3—Validity)

DANS LES AFFAIRES JOINTES C-27/00 ET C-122/00

«Règlement (CE) n° 925/1999—Émissions sonores des avions—Interdiction des avions ‘remotorisés’ avec un moteur dont le taux de dilution est inférieur à 3—Validité»

IN CASE C-92/01

(Article 8a of the EC Treaty (now, after amendment, Article 18 EC)—European citizenship—Article 59 of the Treaty (now, after amendment, Article 49 EC)—Freedom to provide services—Community air transport—Airport tax—Discrimination—Regulation (EEC) No 2408/92)

DANS L’AFFAIRE C-92/01

«Article 8 A du traité CE (devenu, après modification, article 18 CE)—Citoyenneté européenne—Article 59 du traité CE (devenu, après modification, article 49 CE)—Libre prestation des services—Transports aériens communautaires—Taxe aéroportuaire—Discrimination—Règlement (CEE) n° 2408/92»

IN CASE C-460/02

(Air transport – Groundhandling – Directive 96/67/EC)

DANS L’AFFAIRE C-460/02

«Transports aériens – Assistance en escale – Directive 96/67/CE»

IN CASE C-386/03

(Failure of a Member State to fulfil obligations – Airports – Groundhandling – Directive 96/67/EC)

DANS L’AFFAIRE C-386/03

«Manquement d’État – Aéroports – Assistance en escale – Directive 96/67/CE»

IN CASE C523/04

(Failure of a Member State to fulfil obligations – Conclusion by a Member State of a bilateral air transport agreement with the United States of America – Right of establishment – Secondary law governing the internal market in air transport – External competence of the Community)

DANS L’AFFAIRE C523/04

«Manquement d’État – Conclusion par un État membre d’un accord bilatéral relatif au transport aérien avec les États-Unis d’Amérique – Droit d’établissement – Droit dérivé régissant le marché intérieur du transport aérien – Compétence externe de la Communauté»

IN JOINED CASES C-317/04 and C-318/04

(Protection of individuals with regard to the processing of personal data – Air transport – Decision 2004/496/EC – Agreement between the European Community and the United States of America – Passenger Name Records of air passengers transferred to the United States Bureau of Customs and Border Protection – Directive 95/46/EC – Article 25 – Third countries – Decision 2004/535/EC – Adequate level of protection) 692

DANS LES AFFAIRES JOINTES C-317/04 et C-318/04

«Protection des personnes physiques à l’égard du traitement des données à caractère personnel – Transport aérien – Décision 2004/496/CE – Accord entre la Communauté européenne et les États-Unis d’Amérique – Dossiers des passagers aériens transférés au Bureau des douanes et de la protection des frontières des États-Unis d’Amérique – Directive 95/46/CE – Article 25 – États tiers – Décision 2004/535/CE – Niveau de protection adéquat»

CASE C422/05

(Air transport – Noise-related operating restrictions at Community airports)

AFFAIRE C422/05

«Transport aérien – Restrictions d’exploitation liées au bruit dans les aéroports de la Communauté»

IN CASE C137/05,

(Regulation (EC) No 2252/2004 – Passports and travel documents issued by the Member States – Standards for security features and biometrics − Validity)

DANS L’AFFAIRE C137/05

«Règlement (CE) n° 2252/2004 – Passeports et documents de voyage délivrés par les États membres − Normes concernant les éléments de sécurité et les éléments biométriques − Validité»

IN CASE C345/06

(Article 254(2) EC – Regulation (EC) No 1049/2001 – Article 2(3) – Regulation (EC) No 622/2003 – Aviation security – Annex – List of articles prohibited on board aircraft – Not published – Binding force)

DANS L’AFFAIRE C345/06

«Article 254, paragraphe 2, CE – Règlement (CE) n° 1049/2001 – Article 2, paragraphe 3 – Règlement (CE) n° 622/2003 – Sûreté aérienne – Annexe – Liste des articles prohibés à bord d’aéronefs – Absence de publication – Force obligatoire»

IN CASE C181/06

(Air transport – Airports – Groundhandling – Levying of a fee for ground administration and supervision)

DANS L’AFFAIRE C181/06

«Transports aériens – Aéroports – Assistance en escale – Perception d’une redevance d’assistance administrative au sol et de supervision»

IN CASE T423/07

(State aid – Competition – Abuse of a dominant position – Aviation sector – Exclusive use of Terminal 2 at Munich Airport – Action for failure to act – Adoption of a position by the Commission – No need to adjudicate – Obligation to act – None)

DANS L’AFFAIRE T423/07

« Aides d’État – Concurrence – Abus de position dominante – Secteur aérien – Usage exclusif du terminal 2 de l’aéroport de Munich – Recours en carence – Prise de position de la Commission – Non-lieu à statuer – Obligation d’agir – Absence »

IN CASE C136/07

(Failure of a Member State to fulfil obligations – Directives 89/48/EEC and 92/51/EEC – Recognition of diplomas and professional education and training – Profession of air traffic controller)

DANS L’AFFAIRE C-136/07

«Manquement d’État – Directives 89/48/CEE et 92/51/CEE –Reconnaissance des diplômes et des formations professionnelles – Profession de contrôleur de la circulation aérienne»

IN CASE C-2/07

(Directive 85/337/EEC – Assessment of the effects of projects on the environment – Airport with a runway more than 2 100 metres in length)

DANS L’AFFAIRE C-2/07

«Directive 85/337/CEE – Évaluation des incidences de projets sur l’environnement – Aéroport ayant une piste de décollage et d’atterrissage de plus de 2 100 mètres de long»

IN CASE C-301/08

(Transport policy – Regulation (EC) No 2027/97 – Warsaw Convention – Air carrier liability in the event of accidents – Time-limit for bringing an action for damages in respect of harm suffered)

DANS L’AFFAIRE C-301/08

«Politique des transports – Règlement (CE) n º 2027/97 – Convention de Varsovie – Responsabilité des transporteurs aériens en cas d’accident – Délai pour l’introduction d’une action en indemnisation du préjudice subi»

DANS L’AFFAIRE C-169/08

«Libre prestation des services – Article 49 CE – Aides d’État – Article 87 CE – Législation régionale instituant une taxe en cas d’escale touristique d’aéronefs destinés au transport privé de personnes ainsi que d’unités de plaisance frappant uniquement les exploitants ayant leur domicile fiscal en dehors du territoire régional»

DANS L’AFFAIRE T145/08,

« Marque communautaire – Procédure de nullité – Marque communautaire verbale ATLAS – Marque Benelux figurative antérieure atlasair – Exigences de forme – Dépôt d’un mémoire exposant les motifs du recours – Suspension de la procédure administrative – Article 59 du règlement (CE) n° 40/94 [devenu article 60 du règlement (CE) n° 207/2009] – Règle 20, paragraphe 7, du règlement (CE) n° 2868/95 »

IN CASE C-447/09

(Directive 2000/78/EC – Articles 2(5), 4(1) and 6(1) – Prohibition of discrimination on grounds of age – Airline pilots – Collective agreement – Clause automatically terminating employment contracts at age 60)

DANS L’AFFAIRE C-447/09

«Directive 2000/78/CE – Articles 2, paragraphe 5, 4, paragraphe 1, et 6, paragraphe 1 – Interdiction des discriminations liées à l’âge – Pilotes de ligne – Convention collective – Clause de cessation automatique des contrats de travail à 60

IN CASE C-275/09

(Directive 85/337/EEC – Assessment of the effects of certain public and private projects on the environment – Airports with a runway length of 2 100 metres or more – Concept of ‘construction’ – Renewal of operating consent)

DANS L’AFFAIRE C-275/09

«Directive 85/337/CEE – Évaluation des incidences de certains projets publics et privés sur l’environnement – Aéroports dont la piste de décollage a une longueur d’au moins 2 100 mètres – Notion de ‘construction’ – Renouvellement de l’autorisation d’exploitation»

IN CASE C-176/09

(Action for annulment – Directive 2009/12/EC – Airport charges – Scope – Airports whose annual traffic is over 5 million passenger movements per year and those with the highest passenger movements in each Member State – Validity – Principles of equal treatment, proportionality and subsidiarity)

DANS L’AFFAIRE C-176/09

«Recours en annulation – Directive 2009/12/CE – Redevances aéroportuaires – Champ d’application – Aéroports dont le trafic annuel dépasse 5 millions de mouvements de passagers par an et ceux enregistrant le plus grand nombre de mouvements de passagers par an dans chaque État membre – Validité – Principes d’égalité de traitement, de proportionnalité et de subsidiarité»

IN JOINED CASES C128/09 to C131/09, C134/09 and C135/09

(Assessment of the effects of projects on the environment – Directive 85/337/EEC – Scope – Concept of ‘specific act of national legislation’ – Aarhus Convention – Access to justice in environmental matters – Extent of the right to a review procedure in respect of a legislative act)

DANS LES AFFAIRES JOINTES C128/09 à C131/09, C134/09 et C135/09

«Évaluation des incidences de projets sur l’environnement – Directive 85/337/CEE – Champ d’application – Notion d’’acte législatif national spécifique’ – Convention d’Aarhus – Accès à la justice en matière d’environnement – Étendue du droit de recours contre un acte législatif»

IN CASE C-63/09

(Air transport – Montreal Convention – Liability of carriers in respect of checked baggage – Article 22(2) – Limits of liability in case of destruction, loss, damage or delay of baggage – Concept of ‘damage’ – Material and non-material damage)

DANS L’AFFAIRE C-63/09

«Transports aériens – Convention de Montréal – Responsabilité des transporteurs en matière de bagages enregistrés – Article 22, paragraphe 2 – Limites de responsabilité en cas de destruction, perte, avarie ou retard de bagages – Notion de ‘préjudice’ – Dommages matériel et moral»

DANS L’AFFAIRE C459/10

«Pourvoi – Aides d’État – Aide en faveur d’un projet de formation concernant certains emplois sur le nouveau centre de DHL à l’aéroport de Leipzig/Halle – Recours en annulation contre la décision déclarant une partie de l’aide incompatible avec le marché commun – Examen de la nécessité de l’aide – Absence de prise en compte des effets incitatifs de l’aide et de ses externalités positives sur le choix du site»

IN CASE C-366/10

(Reference for a preliminary ruling – Directive 2003/87/EC – Scheme for greenhouse gas emission allowance trading – Directive 2008/101/EC – Inclusion of aviation activities in that scheme – Validity – Chicago Convention – Kyoto Protocol – EU-United States Air Transport Agreement – Principles of customary international law – Legal effects thereof – Whether they may be relied upon – Extraterritoriality of European Union law – Meaning of ‘charges’, ‘fees’ and ‘taxes’)

DANS L’AFFAIRE C-366/10

«Demande de décision préjudicielle – Directive 2003/87/CE – Système d’échange de quotas d’émission de gaz à effet de serre – Directive 2008/101/CE – Intégration des activités aériennes dans ce système – Validité – Convention de Chicago – Protocole de Kyoto – Accord de transport aérien UE/États-Unis – Principes du droit international coutumier – Effets juridiques – Invocabilité – Extraterritorialité du droit de l’Union – Notions de ‘redevance’ et de ‘taxe’»

IN CASE C-294/10

(Air transport – Regulation (EC) No 261/2004 – Article 5(3) – Compensation of passengers in the event of cancellation of a flight – Exemption from the obligation to pay compensation in the event of extraordinary circumstances – Implementation, by the air carrier, of all reasonable measures to avoid extraordinary circumstances – Organisation of resources in good time to be able to ensure the operation of the flight after such circumstances have ended)

DANS L’AFFAIRE C155/10

«Conditions de travail – Directive 2003/88/CE – Aménagement du temps de travail – Droit au congé annuel – Pilotes de ligne»

IN CASE C120/10

(Air transport – Directive 2002/30/EC – Noise-related operating restrictions at Community airports – Noise level limits that must be observed when overflying built-up areas near an airport)

DANS L’AFFAIRE C-120/10

«Transport aérien – Directive 2002/30/CE – Restrictions d’exploitation liées au bruit dans les aéroports de la Communauté – Limites de niveau sonore à respecter lors du survol de territoires urbains situés à proximité d’un aéroport»

IN CASE C-83/10

(Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 2(l) – Compensation for passengers in the event of cancellation of a flight – Meaning of ‘cancellation’ – Article 12 – Meaning of ‘further compensation’ – Compensation under national law)

DANS L’AFFAIRE C-83/10

«Renvoi préjudiciel – Transport aérien – Règlement (CE) nº 261/2004 –Article 2, sous l) – Indemnisation des passagers en cas d’annulation d’un vol – Notion d’’annulation’ – Article 12 – Notion d’’indemnisation complémentaire’ – Indemnisation en vertu du droit national»

IN CASE C-9/11

(Freedom to provide services – Tax legislation – Tax credit on income from loans granted for the acquisition of assets used on national territory – Exclusion of assets for which the right to use is transferred to a third party established in another Member State)

DANS L’AFFAIRE C-9/11

«Libre prestation des services – Législation fiscale – Crédit d’impôt sur les revenus de prêts accordés pour l’acquisition de biens utilisés sur le territoire national – Exclusion des biens dont le droit d’usage est cédé à un tiers établi dans un autre État membre»

LIABILITY RULES DEVELOPED BY EUROPEAN COURTS

REGLES DE RESPONSABILITE ETABLIES PAR LES JURIDICTIONS DE L’UNION EUROPEENNE

BY

PHILIP FORSANG NDIKUM

AND

SERGE-DELORS NDIKUM

VOLUME 4

ENGLISH AND FRENCH VERSION

VERSION ANGLAISE ET FRANÇAISE

‘© European Union, http://eur-lex.europa.eu/’

‘Only European Union legislation printed in the paper edition of the Official Journal of the European Union is deemed authentic’.

2014 Edition

NDIKUM PUBLICATIONS LONDON, ENGLAND

IN COLLABORATION

WITH TRAFFORD PUBLISHING

INDIANA, UNITED STATES

PHILIP FORSANG NDIKUM

DEDICATED TO MY FATHER

JOHN NKAFOR NDIKUM

1936-1977

SERGE-DELORS NDIKUM

DEDICATED TO MY GRAND FATHER

JOHN NKAFOR NDIKUM

1936-1977

FOREWORD

This compendium of aviation law is the first of its kind ever internationally and Cameroon in particular, and is brought to you by a man uniquely distinguished as an authoritative source on this fascinating area of law. Prior to undertaking a rigorous international legal education, of outstanding quality, Philip Forsang Ndikum, Esq. had over fifteen years of experience working in the aviation industry (for none other than Cameroon Airlines, the national carrier), during which time he studied at École Nationale de l’Aviation Civile, Paris, France.

He has a deep understanding of the intricacies of the workings of the international air system; from commercial airlines to their interactions with various government agencies and national regulations.As a result, it was only natural for him to seek a specialist’s knowledge of this sector’s legislation and governance, whilst pursuing his later legal tuition. During his preliminary LLB in the UK, he studied under Nigel Arthur (who was acknowledged as a pre-eminent academic in the field of aviation law). Subsequently Philip Forsang Ndikum, Esq. wrote his dissertation concentrating on this area, for which he was awarded a distinction.

Upon commencing practice as a Barrister,-first in England, then the U.S. and France, before relocating his firm’s headquarters to his homeland, Cameroon- Philip Forsang Ndikum, Esq. began to undertake a number of aviation-related cases, and has continued to do so ever since. Whilst he has diligently proved to be exceptionally competent in all areas of the law, aviation has remained the area in which his flair really shines through.

Furthermore, this is not his first publication in which he writes on the topic: ‘Focus on Emerging & Developing Economies’ (2005, Trafford Publishing, USA),—a significant section of the book is centred on the law of the air.

In producing the volume you hold in your hands, he aimed to provide the definitive handbook on the subject, in order to make it more accessible to all with an interest; especially legal professionals, students and laymen. As such, he concluded that it ought be more than a dry collection of domestic texts, and that it would be enhanced with the inclusion of international aviation treaties, relevant cases (Cameroonian and foreign) and other materials combined to provide a strong contextual comprehension of the subject.

As a student myself, I am well aware of the time-saving potential of such a resource; and so I have endeavoured in my editing of it to ensure the layout is as clear, and easy to reference as possible. It is my hope that you find it an aid in whatever purpose to which you apply the knowledge contained herein, and that in the years to come it will earn its place as a trusted resource in your collection of legal compendiums.

Alexander D. J. Black

Ronald Coase Scholar,

University of Buckingham, England

ACKNOWLEDGEMENTS

My greatest debts are to my wife, Mrs. Honorine Ndikum, children, Dr. John Ndikum (MD), Serge-Delors Ndikum and Philip Forsang Ndikum, Jr.

I am equally grateful to Joy Caisley, Law and Official Publications Librarian at the University of Southampton and the University of Southampton School of Law who gave Serge-Delors Ndikum their utmost support during his research on the topics contained in these volumes.

A debt of gratitude is also due to the dedicated and dynamic staff at Ndikum Law Offices, and finally to Alexander Black who spent sleepless nights working hard, editing part of the four volumes comprising the compendium during his stint at the Ndikum Law Offices’s Douala branch, as part of the 2012 Summer Internship Programme for International Students.

NOTES ON THE AUTHORS

Philip Forsang Ndikum is a Barrister-At-Law in England and Wales, called from The Honourable Society of Lincoln’s Inn, London and a Barrister and Solicitor of the Supreme Court of Cameroon, called from the Court of Appeal, Douala, Cameroon, Africa. He is founder of Ndikum Law Group: Ndikum Law Offices Limited, England, United Kingdom and Ndikum Law Offices, Douala, Cameroon, Africa and Ndikum Publications, London, England. He was a research and graduate assistant at the University of Minnesota Human Rights Center. He clerked (foremost LL.M. Programme, University of Minnesota, U.S.A.) for the Honourable Judge Nancy D. Dreher, United States Bankruptcy Court, Minneapolis, Minnesota, U.S.A. He has worked in Law firms in Douala, Cameroon; Paris, France; England, United Kingdom; and Minnesota, U.S.A.

He is currently a lecturer in OHADA Law at the CAMEROON-EUROPEAN UNION COOPERATION PROGRAMME D’APPUI AU SECTEUR DE LA JUSTICE (PAJ).

He is featured in the Who’s Who in America for outstanding achievements and is featured in the Who’s Who: American Law Students for outstanding academic achievements.

He obtained an LL.M. Honours degree in Banking Law and Financial Regulation from The London School of Economics and Political Science (LSE). Before joining the LSE, he obtained a Post Graduate Diploma in Professional Legal Skills from City University London and obtained the BVC at the Inns of Court School of Law.

He obtained a Juris Doctorate degree from William Mitchell College of Law, Saint Paul, Minnesota, U.S.A. In addition, he obtained an LL.M. with Distinction from the University of Minnesota Law School, Twin Cities Campus, Minneapolis, Minnesota, U.S.A.

He was a distinguished law student at the University of Luton Law School where he obtained an LL.B. (Hons). He also obtained a Diploma in International Human Rights and Human Rights from Strasbourg, France. Prior to this he studied at École Nationale de l’Aviation Civile, Paris, France.

He is a graduate of Cameroon Protestant College Bali (commonly called Bali College or CPC), Bali, Cameroon, Africa.

He is a member of the London Court of International Arbitration (LCIA), American Bar Association, Association of Trial Lawyers of America, Minnesota Black Lawyers Association, National Black Association, Bali Old Boys Association and Cameroon Bar Asociation.

AND

Serge-Delors Ndikum is a member of the LL.M. Maritime Law class, 2014, University of Southampton School of Law and LL.B. Honours class of 2013, University of Southampton School of Law.  Furthermore he was awarded honours in French civil law at Université Paris-Sud XI, Faculté Jean Monnet.  

He is the Founding President of the African Maritime, Finance, Oil & Gas Society at the University of Southampton School of Law. Moreover, he is the International Consultant at Ndikum Law Offices, Douala, Cameroon and heads the European Operations and Aviation and maritime Law department of the firm. Serge has gained considerable international experience working in law firms in Douala, Cameroon and England, United Kingdom.

Moreover, his robust legal skill set was further honed during his time as a legal intern at the United Nations World Food Programme’s Legal Office in Rome, Italy. More specifically, his work at the organisation was focused on maritime, insurance, aviation and finance law. 

Within his first year at Southampton University School of law the student body elected Serge-Delors President of the University of Southampton Law Society. His great dedication to public service was recognised in Future Leaders magazine 2013: he was ranked eighth in the publication’s list of the United Kingdom’s 100most outstanding African and Caribbean students and new graduates. 

Prior to that, he graduated as an ‘All-Round Scholar’ from Gordonstoun School, Scotland, United Kingdom. A keen debater, he secured a place on the Gordonstoun School debating team, and won several awards for his performances in national competitions.

He also gained full football First XI colours during his time at Gordonstoun School contributing immensely to the team as the top goal scorer during every season that he played for the team. Most significantly he was top goal scorer during the season in which Gordonstoun, for the first time in its history, won the Scottish Independent School’s Football Association cup.

He was also selected as a member of the Université Paris-Sud XI debating team in 2013 which took part in the French Debating Association national competition and his team defeated several Grandes écoles, including the Paris Institute of Political Studies and Ecole des Mines.  He was also employed as a fonctionnaire (civil servant) to teach third year and post graduate students at the University of Paris XI, Orsay.

He is a member of the Old Gordonstounian’s Association and Lincoln’s Inn. 

PREFACE

The four volumes of the Encyclopaedia of International Aviation Law are intended for students, lawyers, judges, scholars and readers of all backgrounds with an interest in Aviation Law; and to provide the definitive corpus of relevant national and regional legislation, including global aviation treaties and legislation to enable all readers without exception, to develop the background, knowledge and tools to understand local, regional and international Aviation Law in contextual fashion.

The first volume has a detailed text of country legislation, including national cases and materials whilst the second, third and fourth volumes focus on International Aviation Law Treaties, international cases and materials and Aircraft Refueling Indemnity (TAR BOX) Agreements.

The reason for our delving into this project and passionately investing an inordinate amount of our efforts into research to conjure these volumes is simply as we see it; to give readers access to all levels of relevant legislation, cases and materials from one source.

This resource provides a tool box to readers of any background, who may decide to use this four volume compendium for research, leisure, litigation, an Alternative Dispute Resolution guide and for any other purpose and of course to also assist such readers to also capture perspective in international aviation law.

Two additional reasons the book(s) are crafted are firstly because the writers are fascinated by aviation, and secondly (but most importantly), it was written with a purview to supply the precise skill-set to lawyers and judges around the globe in that the compendium should enable them quickly research and understand aviation law from one source.

The compendium is published so as to provide an opportunity to short-circuit through the significant demand on time and effort required previously to find and research legislation, cases and materials during Alternative Dispute Resolution (ADR) or litigation in the area of aviation matters.

On a personal note from our humble selves, we feel privileged that you are reading our work; as such we want to thank you from the bottom of our hearts and we are humbled enough to let you know that for the past many years we have researched tons of relevant cases and materials and travelled around the country and world collating this encyclopaedia solely with you in mind.

It is our fervent hope that this undertaking will provide you with the Aviation Law four volume compendium and that perusing it shall enhance your knowledge in what we consider one of the most exciting areas of law. Furthermore, we hope that our contributing this resource will assist you greatly in any relevant practical purpose you elect to pursue; and that the enacting of any such application inspired by it, is made effectively, albeit with much ease.

EUROPEAN UNION CASE LAW

1a)

JUDGMENT OF THE COURT OF FIRST INSTANCE

IN CASE T-260/94

19 JUNE 1997

[234s(Air transport — Continuation of an exclusive concession on domestic routes —Regulation (EEC) No 2408/92 — Articles 5 and 8 — Rights of the defence — Audialteram partem — Principle of good faith — Principle of proportionality — Article90(2) of the EC Treaty)[s

In Case T-260/94,

Air Inter SA, a company incorporated under French law, having its registered officein Paray Vieille Poste, France, represented by Jean-Pierre Spitzer, of the Paris Bar,with an address for service in Luxembourg at the Chambers of Aloyse May, 31Grand-Rue,

applicant,

v

Commission of the European Communities, represented by Rolf Wägenbaur,Principal Legal Adviser, and Lucio Gussetti, of its Legal Service, acting as Agents,with an address for service in Luxembourg at the office of Carlos Gómez de laCruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

TAT European Airlines,represented by Antoine Winckler, of the Paris Bar, andRomano Subiotto, Solicitor, with an address for service in Luxembourg at theChambers of Elvinger and Hoss, 2, Place Winston Churchill,

and

United Kingdom of Great Britain and Northern Ireland,represented by John E.Collins, of the Treasury Solicitor’s Department, acting as Agent, and RichardPlender QC, with an address for service in Luxembourg at the United KingdomEmbassy, 14 Boulevard Roosevelt,

interveners,

APPLICATION for annulment of Article 1 of Commission Decision 94/291/EC of27 April 1994 on a procedure relating to the application of Council Regulation(EEC) No 2408/92 (Case VII/AMA/IV/93 — TAT — Paris (Orly)-Marseille and Paris(Orly)-Toulouse) (OJ 1994 L 127, p. 32),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber, ExtendedComposition),

composed of: C.W. Bellamy, President, C.P. Briët and A. Kalogeropoulos, Judges,

Registrar: J. Palacio Gonzáles, Administrator,

having regard to the written procedure and further to the hearing on 13 November1996,

gives the following

Judgment

The legal background

With a view to the gradual establishment of the internal market for air transport,the Community legislature adopted three sets of measures in 1987, 1990 and 1992which were known as ‘packages’ on account of the fact that they consisted ofseveral documents. The third ‘package’, adopted on 23 July 1992, consists of fiveregulations which aim to ensure the freedom to provide air transport services andthe application of the Community competition rules in that sector.

One of those five regulations is Council Regulation (EEC) No 2408/92 of 23 July1992 on access for Community air carriers to intra-Community air routes (OJ L240, p. 8, hereinafter ‘Regulation No 2408/92’ or ‘the Regulation’), which enteredinto force on 1 January 1993 pursuant to Article 16 thereof.

Article 3(1) sets out the principle that ‘subject to this Regulation, Community aircarriers shall be permitted by the Member State(s) concerned to exercise trafficrights on routes within the Community’.

Article 5 provides as follows:

‘On domestic routes for which at the time of entry into force of this Regulation anexclusive concession has been granted by law or contract, and where other formsof transport cannot ensure an adequate and uninterrupted service, such aconcession may continue until its expiry date or for three years, whichever deadlinecomes first.’

Article 8 provides as follows:

‘1. This Regulation shall not affect a Member State’s right to regulate withoutdiscrimination on grounds of nationality or identity of the air carrier, thedistribution of traffic between the airport within an airport system.

2. The exercise of traffic rights shall be subject to published Community,national, regional or local operational rules relating to safety, the protection of theenvironment and the allocation of slots.

3. At the request of a Member State or on its own initiative the Commissionshall examine the application of paragraphs 1 and 2 and, within one month ofreceipt of a request and after consulting the Committee referred to in Article 11,decide whether the Member State may continue to apply the measure. TheCommission shall communicate its decision to the Council and to the MemberStates.

4. Any Member State may refer the Commission’s decision to the Councilwithin a time-limit of one month. The Council, acting by a qualified majority, mayin exceptional circumstances take a different decision within a period of one month.

[ . . . ]’.

Pursuant to Article 2(m) in conjunction with Annex II to the Regulation, the’airport systems’ referred to in Article 8(1) include, as regards France, ‘Paris-Charles de Gaulle/Orly/Le Bourget’.

Article 11 provides that the Commission is to be assisted by an AdvisoryCommittee composed of the representatives of the Member States and chaired bythe representative of the Commission.

Article 12 lays down that, in carrying out its duties under the Regulation, theCommission may obtain all necessary information from the Member States and aircarriers concerned.

Facts

The administrative procedure

By letter of 21 June 1993 TAT European Airlines (‘TAT’), established at Tours, France, applied to the Directorate-General for Civil Aviation in the FrenchMinistry of Transport for a licence to operate on the Paris (Orly)-Toulouse andParis (Orly)-Marseille routes, referring, in its application, to the Regulation.

By letter of 21 July 1993 the Director-General of Civil Aviation rejected thatapplication, basing his rejection on Article 5 of the Regulation. In his letter heindicated to TAT that under that provision the French authorities could maintainthe exclusivity which they had granted to Air Inter by an agreement of 5 July 1985signed by the French State and that company (hereinafter ‘the 1985 Agreement’). At that time, Air France, in which the French State had a shareholding in excessof 99%, held more than 70% of the share capital of Air Inter.

On 28 September 1993 TAT lodged a complaint with the Commission claiming thatthere had been an infringement of Articles 3(f), 86 and 90 of the EC Treaty anda failure to comply with an agreement concluded on 30 October 1990 between theCommission, the French Government and Air France (hereinafter ‘the 1990Agreement’) aimed at opening up, inter alia, the Paris-Toulouse and Paris-Marseille routes to competition. In the alternative, TAT claimed that there hadbeen an infringement of the Regulation. It submitted that the monopoly of the AirFrance group on the Paris (Orly)-Marseille and Paris (Orly)-Toulouse routes shouldhave come to an end on 1 March 1992, as provided for in the 1990 Agreement. Nor was Article 5 of the Regulation applicable, since Air Inter had not enjoyedexclusivity on those two routes, as TAT provided a service from Roissy-Charles deGaulle airport (hereinafter ‘CDG’) on those same routes. Finally, thediscrimination against TAT was incompatible with Article 8(1) of the Regulation.

By letter dated 13 October 1993 to the Director-General of the Commission’sDirectorate-General for Transport (hereinafter ‘DG VII’), TAT supplemented itssubmissions on Articles 5 and 8(1) of the Regulation and requested theCommission to adopt a decision on the basis of Article 8(3) of the Regulation.

By letter of 20 October 1993 the Commission’s Directorate-General forCompetition (hereinafter ‘DG IV’) sent a copy of TAT’s complaint to the Frenchauthorities and to the Air France group asking for their comments, if any. Thesupplement to the complaint lodged by TAT was not annexed to that letter.

By letter of 22 October 1993 the Director-General of DG VII also notified theFrench authorities of TAT’s complaint, but did not send a copy of it to them. Healso informed them that, at first sight, he considered TAT’s submissions to be wellfounded.

Neither the complaint nor the supplement to the complaint was sent by theCommission to Air Inter.

In a letter dated 21 December 1993 — addressed to the Secretary-General of theCommission with copies to DG IV and DG VII — the French authorities sent theirobservations on TAT’s complaint. They submitted that Article 5 of the Regulationwas applicable, since, with the exception of the Nice service, the opening up ofcompetition provided for by the 1990 Agreement concerned only routes to or fromCDG, so that Air Inter had retained exclusivity for the routes to or from OrlyAirport. Its reply did not mention Article 8 of the Regulation.

By letter of 21 January 1994 the Director-General of DG VII notified the Frenchauthorities of the lodging by TAT of a supplement to the complaint and pointedout that Article 8(3) of the Regulation empowered the Commission to adopt adecision.

On 16 February 1994, in reply to that letter, the French authorities sent to theCommission a letter summarizing their position.

After that exchange of correspondence, the Advisory Committee provided for inArticle 11 of the Regulation met on 28 February 1994. During that meeting thedelegations of the Member States were able to give their views on the draftdecision based on Article 8(3) of the Regulation, which had been sent to them bythe Commission on 10 February 1994.

The Advisory Committee’s opinion was in the following terms:

‘The majority of the members present are of the following opinion: from theinformation available to the Committee, it appears that the misapplication ofArticle 5 by France has led to discrimination. A majority of the members is,however, against a decision adopted on the basis of Article 8 of the Regulation’.

On 4 March 1994 a delegation headed by the Head of Cabinet of theCommissioner responsible for transport received a delegation from Air Inter inorder to discuss the possible implications of a Commission decision, in the light ofthe position adopted, for the future of Air Inter on the Community market. Afterthe meeting Air Inter sent a letter, signed by the Deputy Managing Director, dated7 March 1994, setting out ‘Air Inter’s situation as the Commission is about to takedecisions in the TAT cases’. Lastly, by letter of 15 March 1994 addressed to thePresident of the Commission, Air Inter’s board of directors expressed its concernregarding the future of Air Inter in view of the liberalization of domestic airtransport and, in particular, of the introduction of competition on the mostprofitable routes in the French network.

On 17 March 1994 the French Government sent a new letter to the Commission,drawing attention to the French delegation’s observations at the meeting of theAdvisory Committee regarding in particular, Articles 5 and 8 of the Regulation,Article 90 of the EC Treaty, and the 1985 Agreement and the 1990 Agreement.

At the request of the French Government, the Director of Legal Affairs at theMinistry of Foreign Affairs met the Director-General of the Commission’s LegalService on 30 March 1994 in order to discuss TAT’s complaint.

On 12 April 1994 the Commissioner responsible for transport met the FrenchPrime Minister in order to discuss the various questions concerning French airtransport and, in particular, the allocation of traffic within the Paris Airport system.

The contested decision

On 27 April 1994 the Commission adopted Decision 94/291/EC on a procedurerelating to the application of Council Regulation (EEC) No 2408/92 (CaseVII/AMA/IV/93 — TAT — Paris (Orly)-Marseille and Paris (Orly)-Toulouse) (OJ1994 L 127, p. 32, hereinafter ‘Decision 94/291’ or ‘the contested decision’),whose operative part is in the following terms:

‘Article 1

France may not continue to refuse Community air carriers traffic rights on the Paris(Orly)-Marseille and Paris (Orly)-Toulouse routes on the grounds that the Frenchauthorities were applying Article 5 of Regulation (EEC) No 2408/92 on theseroutes.

Article 2

This Decision is addressed to the French Republic. ( . . .)

Article 3

France is required to give effect to this Decision by 27 October 1994 at the latest.’

In the statement of reasons for the contested decision the Commission states, firstof all, that it holds powers for the allocation of traffic between airports within anairport system which are conferred on it by Article 8(3) of the Regulation. As faras the complaint lodged by TAT is concerned, it considers it necessary to use thosepowers. The measure by which the French authorities refuse to allow Communitycarriers, and more particularly TAT, to exercise traffic rights on the Paris (Orly)-Marseille and Paris (Orly)-Toulouse routes is discriminatory, to the advantage ofAir Inter alone, in the allocation of traffic between the airports within the Parisairport system.

The Commission then states that the maintenance of Air Inter’s exclusiveconcession constitutes a misapplication by the French authorities of Article 5 of theRegulation. That article aims to ensure adequate and uninterrupted transportservices between two points (cities or regions) within the same Member State. Exclusive rights may be maintained only where there is no other way of travellingfrom one city to another, adequately and uninterruptedly, by train or bus or, in thecase of indirect flights or where an alternative airport is available, by plane. Consequently, exclusive rights to a route terminating in an airport system wouldserve their purpose only if they apply to all the airports in that system.

The Commission goes on to observe that the 1985 Agreement itself defines theroutes allocated exclusively to Air Inter as point-to-point rather than airport-to-airport routes and makes no reference whatsoever to the different airports of theParis airport system. In those circumstances, by authorizing TAT to operate on theParis-Marseille and Paris-Toulouse routes to and from CDG with effect from 1March 1992, the French authorities had put an end to the exclusivity enjoyed by AirInter. Furthermore, the Commission considers that upon the entry into force of theRegulation Air Inter did not hold an exclusive concession for the routes in question. As regards the Paris-Marseille route, the 1985 Agreement gave express permissionto the Air Afrique company to operate that same route concurrently with Air Inter. As regards the Paris-Toulouse route (and by extension the Paris-Marseille route),it follows from the 1990 Agreement that Air Inter’s exclusivity on that route endedon 1 March 1992 at the latest.

In the alternative, the Commission states that, even if the grant of an exclusiveconcession were theoretically possible for regular air services between Orly airport,on the one hand, and Marseille and Toulouse, on the other, Article 5 cannot beapplied in the present case. There are other forms of transport, besides those airroutes, which could ensure an adequate and uninterrupted service: the existingdirect air services between Paris (CDG) and Marseille and Toulouse respectively.

The Commission states that the effects of the discrimination at issue areconsiderable. Orly airport is the travellers’ choice and accounts for between 85%and 90% of French domestic traffic to and from Paris. Moreover, the operationof the Paris-Marseille and Paris-Toulouse routes is more expensive from CDG thanfrom Orly, partly for geographical reasons.

Finally, the Commission accepts that its decision may have major repercussions onthe structure and organization of the routes in questions, which is why it considersit advisable to allow a period for adjustment, expiring on 27 October 1994.

Procedure and forms of order sought

Air Inter brought this action by application lodged at the Registry of the Court ofFirst Instance on 12 July 1994.

By application lodged at the Registry of the Court of Justice on 22 June 1994, theFrench Republic had also brought an action for a declaration that the contesteddecision was void. That action was registered in the Court Registry under CaseC-174/94. By interim order of 26 October 1994 in Case C-174/94 R France vCommission [1994] ECR I-5229 the President of the Court of Justice dismissed theFrench Republic’s application for the suspension of operation of the contesteddecision.

By order of 28 October 1994 the Court of First Instance declined jurisdiction in thepresent case, Case T-260/94, pursuant to the second sentence of the thirdparagraph of Article 47 of the EC Statute of the Court of Justice, in order that theCourt of Justice could rule on the application for annulment, which was also soughtin the action brought by the French Republic in Case C-174/94. The orderdeclining jurisdiction was registered in the Registry of the Court of Justice underNo C-301/94.

By orders of 19 January and 8 February 1995 the President of the Court of Justicegave the United Kingdom and TAT leave to intervene in support of the form oforder sought by the Commission in Case C-301/94. Certain confidential documentswere notified to the intervening parties in a non-confidential version produced bythe principal parties.

The Court of Justice decided to open the oral procedure in Case C-301/94 withoutany preparatory inquiry. A report for the hearing was sent to the parties.

Thereafter the French Republic formed the view that it no longer had an interestin annulment of the contested decision and withdrew its action in Case C-174/

Case C-174/94 was therefore removed from the Register of the Court of Justice byorder of 19 March 1996. By order of the Court of Justice of 14 May 1996, CaseC-301/94 was referred back to the Court of First Instance; the costs were reserved.

The proceedings in the present case, T-260/94, were then recommenced before theCourt of First Instance, which ordered certain measures of organization ofprocedure. The oral procedure took place essentially on the basis of the Reportfor the Hearing in Case C-301/94 which had already been distributed.

The parties submitted oral argument and replied to the Court’s questions at thehearing on 13 November 1996 before the Court, composed of C.W. Bellamy,President, H. Kirschner, C.P. Briët, A. Kalogeropoulos and A. Potocki, judges.

Following the death of Judge Kirschner on 6 February 1997, the three judges whosesignatures appear below deliberated on the present judgment in accordance withArticle 32(1) of the Rules of Procedure.

The applicant claims that the Court should:

annul Article 1 of Decision 94/291;

order the Commission to pay the costs.

The Commission contends that the Court should:

dismiss the application as unfounded;

order the applicant to pay the costs.

TAT contends that the Court should:

dismiss the application as unfounded;

order the applicant to pay the costs, including those incurred by TAT.

The United Kingdom contends that the Court should:

dismiss the application;

order the applicant to pay the costs, including those incurred by the UnitedKingdom.

Substance

In support of its application, the applicant relies on a number of pleas contestingboth the formal and the substantive legality of the contested decision. As regardsits formal legality, the applicant complains, principally, that the Commissioninfringed its rights of defence and, in the alternative, that it infringed the audialteram partem principle and the principle of good faith as against the FrenchRepublic. As regards it substantive legality, the applicant complains, principally,that the Commission abused the procedure provided for in Article 8(3) of theRegulation and, in the alternative, that it infringed Article 5 thereof. Again in thealternative, it alleges infringement of Article 90(2) of the Treaty and infringementof the principle of proportionality. Finally, and in the further alternative, it claimsthat the refusal by the French authorities to allow TAT access to the two routes inquestion does not discriminate against that company, since the applicant’sexclusivity on those routes was justified by Article 5 of the Regulation.

The plea of infringement of the applicant’s rights of defence

Arguments of the parties

The applicant observes that it is settled law that observance of the rights of thedefence constitutes a fundamental principle of Community law which must beobserved even in the context of an administrative procedure. Consequently, aperson who may be affected by a Commission decision should be placed in aposition in which he may make known his views before the decision is adopted.

The applicant states that, in the present case, although it is the only operatorconcerned by the contested decision, the Commission never formally invited it toappear before it, never sent any documents to it and did not invite it to submitobservations on the matter. The applicant therefore considers that it was not ableto make its view known. It is thus in a similar situation to that of the NetherlandsPTT undertakings examined by the Court of Justice in its judgment in Joined CasesC-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I-565. Italso refers to the judgment in Case C-135/92 Fiskano v Commission [1994] ECR I-2885.

Inasmuch as the Commission claims to have given a formal hearing to the applicanton 4 March 1994, the applicant states that that meeting took place at its ownrequest and four months after the Commission had already adopted a position. Furthermore, the purpose of the meeting was purely economic, as was also theapplicant’s letter of 7 March 1994. Finally, the letter from the applicant’s directorsof 15 March 1994 merely expressed their concerns.

The applicant contests the Commission’s argument that the contested decision, farfrom concerning the applicant’s specific situation, is of a general nature in that itconcerns the French Government’s policy on airports. The national measure inquestion was the French authorities’ refusal to grant the traffic rights in questionto TAT, a refusal which directly benefited the applicant. Moreover, the applicantis explicitly concerned by the contested decision, which concerns the legality of theexclusivity granted to the applicant on the routes at issue. Finally, it is wholly anddirectly affected by the consequences of the contested decision.

The applicant observes that Article 8(3) of the Regulation must be interpreted asrequiring the Commission not only to place the Member State concerned in aposition to defend its interests, but also any other party directly concerned, such asthe applicant. Consequently, even in the absence of specific provisions, theCommission was required to make procedural arrangements on its own initiativein such a way as to ensure effective protection. The general principle of protectionof the rights of the defence is applicable where specific rules exist and a fortioriwhere there are no such rules.

If the Court interprets Article 8(3) as authorizing a derogation from the principleof the observance of the rights of the defence of any interested party, the applicantconsiders that the Court should then examine the validity of that provision. AnyCommunity regulation authorizing a derogation from a fundamental principle ofCommunity law is ipso iure in breach of Community law. Consequently, the Courtcould not but declare Article 8(3) void.

Finally, the applicant considers it to be absurd to claim, in this context, that it wassufficient to consult the representatives of the Member States sitting in theAdvisory Committee. That committee’s role was not to represent the interests ofprivate undertakings, but to assist the Commission and to inform it of the MemberStates’ positions.

The Commission states that the Regulation does not provide for a procedureallowing the undertakings concerned to be involved. Thus, the procedure underArticle 8(3) of the Regulation adopts the broad outline of the procedure underArticle 169 of the Treaty, which does not provide for any obligation to consulteither. The Commission observes, moreover, that under a procedure initiated atthe request of a Member State under Article 8(3) of the Regulation it must takea decision within a period of one month. If there is a large number of airlinesbenefitting from a discriminatory measure, it is practically impossible to complywith that time-limit.

The Commission disputes that the judgments in Netherlands and Others vCommission and Fiskano v Commission are relevant in this case. It argues inparticular that the contested decision concerns the allocation of air routes withinthe Paris airport system and that the applicant suffers the economic effects of thedecision only indirectly and partially. The fact that the French authorities haveclaimed that the applicant enjoys an exclusive concession under Article 5 of theRegulation does not preclude the substantive question from being the questionwhether the general measures adopted by the French Republic might discriminatein the distribution of traffic in the Paris airport system and so affect the rights ofall Community companies. Misuse of that provision could not suffice on its ownto impose an obligation to consult the applicant.

The Commission claims that, in any event, the applicant was given a formal hearingon 4 March 1994 and it made known its point of view, in particular in the letter of7 March 1994, and it was thus unnecessary for the Commission to hear it again. In its rejoinder (p. 6) it explains that the French authorities kept the applicantcontinuously informed of developments in the matter. That flow of informationwas confirmed by those same authorities in the context of the parallel procedurepending before the Court of Justice. In that regard, the Commission refers to page10 of the reply lodged by the French Republic in Case C-174/94 (see paragraph 33above).

The United Kingdom supports the Commission’s line of argument and observesthat the judgment in Netherlands and Others v Commission is irrelevant in this casebecause the procedure at issue, far from being opened against the applicant, tookplace between the Commission and the French Republic alone. Moreover, thatjudgment concerns the application of Article 90(3) of the Treaty, which does notestablish special rules regarding the persons to be consulted and the consultationprocedure, whereas, in the present case, Regulation No 2408/92 lays down specificrules.

Findings of the Court

Article 8(3) of the Regulation does not provide for the direct participation of aircarriers in the administrative procedure leading to the adoption by the Commissionof a decision on the distribution of traffic within an airport system. The legalframework requires the Commission to address only the Member State concernedafter consulting the Advisory Committee, composed of representatives of theMember States. Only generally and at its option ‘may’ the Commission obtaininformation from air carriers in order to carry out its duties (Article 12 of theRegulation). It follows that the Regulation does not in itself confer rights ofdefence on an air carrier faced with a situation such as that in which the applicantwas placed in this case.

In so far as the Commission seeks to justify that silence by claiming that theprocedure under Article 8(3) was modelled on the procedure provided for inArticle 169 of the Treaty, in which only the Commission and the Member Stateconcerned participate, it should be observed that, under Article 169 of the Treaty,the failure of a Member State to fulfil its obligations is established only by thejudgment of the Court of Justice, whereas, under Article 8(3) of the Regulation, itis the Commission’s decision which imposes the distribution of traffic which theCommission wishes to see. The procedure under Article 169 is therefore essentiallya judicial procedure, whereas the procedure under Article 8(3) is a whollyadministrative procedure. Consequently, the two procedures display substantivedifferences, so that the Commission’s argument based on reference to Article 169of the Treaty cannot be accepted.

As regards the procedure initiated under Article 8(3) of the Regulation, which ledto the adoption of the contested decision, it is settled law that respect for the rightsof the defence, in all proceedings which are initiated against a person and whichare liable to culminate in a measure adversely affecting that person, is afundamental principle of Community law which must be guaranteed even in theabsence of any specific rules (see, for example, the judgment in Netherlands andOthers v Commission, paragraph 44). That principle requires that the personconcerned must be placed in a position in which he can effectively make known hisview of the matters on the basis of which the Commission adopted its measure(judgment in Fiskano v Commission, paragraph 40).

In so far as the Commission claims that the judgment in Netherlands and Others vCommission — given in the context of Article 90(3) of the Treaty — is irrelevant tothe present case because the procedure at issue is laid down by specific rulesexcluding the participation of the air carriers who may be affected, it must beobserved that the application of the fundamental principle of the rights of thedefence cannot be excluded or restricted by any legislative provision. Respect forthat principle must therefore be ensured both where there is no specific legislationand also where legislation exists which does not itself take account of that principle(see, to that effect, the judgment in Case C-32/95 PCommission v Lisrestal andOthers [1996] ECR I-5373, paragraph 30). It follows that the Commission’sargument based on the absence of a specific provision in the legislation in questionmust be rejected.

As to the United Kingdom Government’s argument that the procedure at issue inthis case was not ‘opened against’ the applicant, it should be observed that,although the procedure in question was not formally commenced against theapplicant as an individual economic operator, that was also not the case in thesituation with which the judgment in Netherlands and Others v Commission wasconcerned, in which, in a procedure initiated under Article 90(3) of the Treaty, theCommission formally addressed only the Kingdom of the Netherlands and not theNetherlands PTT companies. That finding did not, however, prevent the Court ofJustice from conferring rights of defence on those companies on the ground thatthey were the direct beneficiaries of the State measure at issue and that they wereexpressly named in the Netherlands law that had been declared unlawful, that theywere expressly named in the decision at issue and that the economic consequencesof that decision directly affected them (paragraphs 50 and 51 of that judgment).

It is therefore necessary to examine whether the reasoning adopted in the judgmentin Netherlands and Others v Commission, conferring rights of defence in the contextof Article 90(3) of the Treaty, may be transposed to the present case. First of all,the applicant was the direct beneficiary of the State measure at issue, namely thecontinuation, to its advantage, of a privileged position on the two routes inquestion, it not being necessary, at this stage, to ascertain whether it could in facthave claimed legal exclusivity. The applicant’s economic position was thereforegoing to be affected by the contested decision, which ordered the Frenchauthorities to open up those two routes to competition by other Community aircarriers. Thus, the applicant was going to bear the economic consequences of thecontested decision directly. Second, the applicant was expressly named in thenational instrument on which it relied for its exclusive traffic rights, namely the1985 Agreement, it not being necessary here to examine the legal effect of thatagreement. Finally, the contested decision repeatedly expressly mentions theapplicant. Consequently, the conditions laid down by the judgment in Netherlandsand Others v Commission are satisfied in this case.

Consequently, the applicant had rights of defence which should have been observedin the procedure culminating in the adoption of the contested decision and it isunnecessary to consider the general question, raised by the Commission, whetherrights of defence exist also in a situation where a procedure initiated under Article8(3) of the Regulation, which has to be completed within a period of one month,would affect an indeterminate number of air carriers.

As regards the question whether the applicant’s rights of defence were observedin the present case, the Court of First Instance held in Case T-450/93 Lisrestal andOthers vCommission [1994] ECR II-1177, which concerned the reduction infinancial assistance which the European Social Fund had initially granted to thebeneficiary undertakings in the course of a procedure