Brussels, 13/09/2012 (Agence Europe) - In his opinion in Case C-547/10P, delivered on Thursday 13 September, Advocate General Jääskinen proposes that the EU Court of Justice reject Switzerland's appeal against the judgment of the General Court on 9 September 2010 (T-319/05) dismissing the action brought by Switzerland against the Commission's decision in the Zurich Airport case (see also EUROPE 10211 and 9258).
By that judgment, the General Court confirmed the Commission's 2003 decision (2004/12/EC) allowing Germany to continue to apply measures to limit noise pollution, measures restricting low altitude night flights from German territory adjacent to the Swiss border by aircraft approaching or taking off from the Zurich/Kloten airport, located 15 km from the German border. The General Court had ruled against Switzerland which claimed that the Commission's decision was in breach of the principle of equal treatment and free provision of services to the detriment of Swiss carriers that use Zurich Airport as a hub. Switzerland calls on the Court to cancel that ruling.
In his opinion, the advocate general considers first and foremost that the Swiss appeal against the Commission must be regarded by the General Court as admissible, as Switzerland was directly and individually concerned by the General Court's decision. He recommends, moreover, that the Court should reject all its arguments invoked by Switzerland against the ruling. Thus, on the classification of the German measures, he finds the General Court was right to find that those measures did not involve a prohibition of the exercise of traffic rights in German airspace but merely entailed a change in the flight paths of flights departing from or landing at Zurich Airport (only low altitude flights over a small part of the territory and for limited periods being prohibited). Regarding the Commission's powers of review, the Commission was only required to verify that the measures had been taken for reasons relating to safety, the protection of the environment or the allocation of slots, and that they applied, so far as the exercise of traffic rights was concerned, to all air carriers in a non-discriminatory way. Consequently, the interests of the airport operator and of persons living nearby are not therefore taken into account in such an examination. Nothing compelled the Commission to check that German measures were in line with the EU/Switzerland agreement on air transport, as neither the free provision of services, nor the principle of proportionality apply in the context of the agreement.
Finally, the advocate general states, the General Court cannot be accused of erring in law as regards the application of the principle of non-discrimination with respect to air carriers (and especially the Swiss company which uses the Zurich Airport as a hub). The General Court's conclusions whereby the German measures were justified and proportionate constitute a finding of fact and are therefore, in principle, not subject to review by the Court of Justice on appeal. (FG/transl.jl)