94/290/EC: Commission Decision of 27 April 1994 on a procedure relating to the application of Council Regulation (EEC) No 2408/92 (Case VII/AMA/II/93 - TAT- Paris (Orly)-London) (Only the French text is authentic)

Article 1

France may not continue to refuse Community carriers permission to exercise traffic rights on the Paris (Orly)-London route on the grounds that Article 4 of the Decree of 6 December 1993 provides that intra-Community international air services from or to Paris must be operated at Charles-de-Gaulle airport.

Article 2

This Decision is addressed to the French Republic. It shall be communicated to TAT European Airlines, the Council of the European Union, the Member States, the Kingdom of Norway and the Kingdom of Sweden.
Done at Brussels, 27 April 1994.
For the Commission
Abel MATUTES
Member of the Commission
(1) OJ No L 240, 24. 8. 1992, p. 8.
(2) OJ No L 140, 11. 6. 1993, p. 51.
(3) Judgments of the Court of 25 July 1991, Cases C-288/89, Collectieve Antennevoorziening Gouda [1991] ECR I-4007 and C-76/90, Saeger v. Dennemeyer, [1991] ECR I-4221.
(4) Jugdment of the Court of 12 May 1985 in Case 13/83, Parliament v. Council [1985] ECR 1513; see also the judgment of the Court of 13 December 1989, Case C-49/89, Corsica Ferries France v. Direction générale des douanes françaises, [1989] ECR 4441.
(5) It must also be emphasized that air transport, like the other modes of transport, is subject to the general rules of the Treaty; see the judgment of the Court of 4 April 1974, Case 167/73, Commission v. France, [1974] ECR 359, and of 30 April 1986, Joined Cases 209 to 213/84, Ministère public v. Lucas Asjes and others [1986] ECR 1425.
(6) OJ No C 334, 9. 12. 1993, p. 3.

Article 7

of the Decree. It is important to point out in this connection that restrictions which would apply to operating licences on this route, even assuming them to be non-discriminatory, objective and consistent, would not in any event be legal until a reasonable period of time had elapsed between their date of publication and their date of entry into force. Such a period of time would be intended to enable airlines to adapt to any such restrictions, and thus avoid any risk of discriminatory effects depending on the nationality or identity of carriers.
X Furthermore, the Commission is of the opinion that the correctness of the restrictions imposed pursuant to Article 8 (1) of Regulation (EEC) No 2408/92 must also be examined on the basis of the principles governing the freedom to provide services as spelled out by decisions of the Court of Justice (3).
In its judgment on Parliament v. Council (4), the Court held that the obligations laid upon the Council by Article 75 (1) (a) and (b) of the Treaty included that of instituting freedom to provide services in the transport field and that the scope of that obligation was clearly defined by the Treaty itself, in Articles 59 and 60 in particular. Also according to the Court, the Council has no discretionary power on this point; since the desired outcome is laid down by Articles 59, 60, 61 and 75 (1) (a) and (b) in conjunction, only the detailed rules for bringing about this outcome may provide an occasion for the exercise of a degree of discretion.
In connection with air transport, the same line of argument must be followed. In providing for the Community to adopt measures with the aim of progressively establishing the internal market before 31 December 1992, Article 7a of the Treaty expressly cites Article 84. And Article 84 (2) makes a direct reference to the procedural provisions of Article 75. In air transport particularly, freedom to provide services within the Community was achieved, within the framework of the common transport policy, with the adoption of the third package, which has been in force since 1 January 1993. Regulation (EEC) No 2408/92 is entirely of a piece with the common transport policy and constitutes a measure fully harmonizing access for Community air carriers to intra-Community air routes. In adopting that Regulation, therefore, the Council determined, on the basis of Article 84 (2), the detailed rules for applying the principles laid down by Articles 59 and 62. As a result, on the subject of freedom of access to the market for Community air carriers, it is henceforth necessary to refer directly to those principles (5), on which the Commission recently issued an imperative communication (6).
Here, the Commission would point out that measures restricting the free movement of services include measures affecting the ability of the service-provider to provide the service and measures preventing potential customers from availing themselves of such services as they wish. Furthermore, the concept of a restriction on the free movement of services goes beyond the prohibition of discrimination. Even where they apply without distinction to national service-providers and those from other Member States, barriers to the freedom to provide services are unacceptable if they are not warranted for objective and overriding grounds in the common interest or if the same result can be obtained by means of less-binding rules (the proportionality principle).
It is apparent, firstly, that the distinction made by Articles 3, 4 and 5 of the Decree of 6 December 1993 is a measure restricting the freedom to provide scheduled air services between the Paris airport system and airports in Member States other than Spain, Greece and Portugal. If affects both the ability of carriers to provide those services at Orly and users wishing to travel within the Community from or to Orly airport. The restriction is an important one, moreover, because customers prefer to use Orly airport, which is closer to the city centre. With about 25 million passengers in 1992, substantially equal to CDG's traffic level, Orly is also among the world's 15 leading airports. Besides this, in the explanatory memorandum introducing the Decree in question, quoted in paragraph V, the French authorities make clear that Orly is both the 'gateway to Paris' and the 'hub of the domestic network'. The measure thus erects barriers to freedom of trade not only between Paris and most of the Member States, but also between those Member States and the French provinces via the Orly hub.
In view of the discrimination on the grounds of carriers' nationality considered in section IX, these obstacles are incompatible with the freedom to provide services. Even aside from this discrimination, however, the Commission is of the opinon that the other requirements set out in the decisions of the Court are not fulfilled in this case.
In their explanatory memorandum, cited in section V, the French authorities pointed to the need to take account of the present situation and of prior investment by the airlines as justification for the provisions of the Decree of 6 December 1993. In the competitive environment for intra-Community air transport prevailing since 1 January 1993, however, it is for the economic operators alone to decide the optimum allocation of their resources, according in particular to the needs and wishes of their customers. And the liberalization measures which entered into force on 1 January 1993 were preceded by several successive stages from 1987 onwards - including the first and second air-transport packages, when Member States had time to make the necessary adjustments.
The French authorities have also put forward the saturation of facilities, the importance of CDG airport as a hub for transfers (connecting flights), and the long-term objectives of their airport policy. The Commission does not dispute these general objectives, nor the right of the French authorities to operate an airport policy in order to fulfil them. Saturation of facilities, and the pursuit of an airport policy, may be regarded as general overriding requirements such as may warrant traffic allocation measures including, where necessary, a restriction of access to Orly airport. The French authorities, however, did not provide any specific evidence to show that Orly airport was much more congested than CDG. On the contrary, they acknowledge that congestion problems occur at peak hours at both airports. Furthermore, overriding requirements of this kind must be reflected in measures which abide by the principle of porportionality. The Commission does not consider it to be so in this case.
The scope of the measure exceeds what is necessary to attain the objectives put forward by the French authorities in their explanatory memorandum, namely to limit saturation of facilities in the short term and, in the longer term, to promote CDG as a great European transit forum whilst developing Orly as the close-in airport for the Paris conurbation. The restriction in question is indeed drastic and, as pointed out earlier, imposes an important restriction on freedom of access to the market within the Community. About 85 % of French domestic traffic originating or terminating at Paris is concentrated at Orly airport, compared with only 15 % at CDG. Thus, even allowing for the cabotage opportunities available at Orly to Spanish, Greek and Portuguese carriers (only), the restriction imposed by Article 4 of the Decree of 6 December 1993 nullifies, in France, much of the practical effect of the introduction of the cabotage expressly desired and decided upon by the Council from 1 January 1993 towards.
The French authorities have not established, nor even alleged, that the outcome which they seek cannot be obtained by less binding measures and ones less harmful to intra-Community trade. The stated intention of the French authorities of progressively opening up Orly airport to high-density intra-Community international services tends, indeed, to show the opposite. Here, the Commission must take into consideration the continuation of charter services at Orly airport under Article 5 of the Decree of 6 December 1993, or again the continuation at Orly of many extra-Community international services - intercontinental services in particular - operated by airlines from non-Community countries or even by Air France. The Commission would also point out that French domestic services may also be operated without restriction by Air Inter from or to Orly airport, which in any case is far from being permanently saturated.
Having regard to all of the foregoing, the Commission is of the opinion that the French authorities have misapplied Article 8 (1) of Regulation (EEC) No 2408/92 by assigning intra-Community international air services to CDG airport alone, by the Decree of 6 December 1993. Consequently, they were wrong in refusing and continuing to refuse Community carriers, in particular TAT, traffic rights on the Paris (Orly)-London route. It is therefore appropriate to decide, pursuant to Article 8 (3) of Regulation (EEC) No 2408/92 that the French authorities may not continue to apply this measure regarding traffic allocation between Orly and CDG airports, as far as the Paris-London route is concerned. This Decision, however, in no way calls into question the rights of the French authorities to pursue an active airport policy, provided that policy complies with the principles of Community law as set out above,
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