Opinion of Advocate General Lenz delivered on 4 May 1993

1 Original language: German.

2 OJ 1989 L 226, p. 14.

3 Council Directive of 25 July 1983 concerning the authorization of scheduled interregional air services for the transport of passengers, mail and cargo between Member States (OJ 1983 L 237, p. 19).

4 This term means, as is clearly indicated by the text of the provision, connections which involve changing aircraft.

5 Council Directive amending, on account of the accession of Portugal, Directive 83/416/EEC concerning the authorization of scheduled interregional air services for the transport of passengers, mail and cargo between Member States (OJ 1986 L 152, p. 47).

6 Sec the fourth recital in the preamble to Directive 89/463.

7 Council Decision of 14 December 1987 on the sharing of passenger capacity between air carriers on scheduled air services between Member States and on access for air carriers to scheduled air-service routes between Member States (OJ 1987 L 374, p. 19).

8 See also the remainder of the texts published in Official Journal L 374 of 31 December 1987, together with the judgment of the Court of Justice in Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekämpfung unlauteren Wettbewerbs e. V [1989] ECR 803.

9 Annex 3 to the application.

10 Second paragraph of the preamble.

11 Third paragraph of the preamble.

12 See EC Bulletin 6-1987, points 2.1.221 and 2.1.227, and also EC Bulletin 12-1987, points 2.1.272 and 2.1.280.

13 Council Regulation on access for air carriers to scheduled intra-Community air service routes and on the sharing of passenger capacity between air carriers on scheduled air services between Member States (OJ 1990 L 217, p. 8).

14 Council Regulation of 23 July 1992 on access for Community air carriers to intra-Community air routes (OJ 1992 L 240, p. 8).

15 Case C-336/90 [1993] ECR I-3961.

16 Case C-397/92 [1993] ECR I-3971.

17 Council Regulation of 4 February 1991 on the operation of air cargo services between Member States (OJ 1991 L 36, p. 1); this regulation has likewise been revoked by Regulation No 2408/92.

18 Case C-128/91 [1993] ECR I-3981.

19 The last of the series of cases currently pending is the very recent application by the Government of Gibraltar and the Gibraltar Development Corporation in Case C-168/91 [1993] ECR I-4009. It relates to Article 1(3) of Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports (OJ 1993 L 14, p. 1).

20 See also paragraphs 25 et seq., below.

21 Halsbury's Laws of England, 4th edition, Volume 6, paragraph 803.

22 In this respect there is concordance between the views of Spain (see the second paragraph of point 2.4 of its intervention) and those of the United Kingdom (see p. 22 of the transcript of the hearing).

23 Where reference is hereinafter made to the rights and interests invoked by the applicant, it is done on the basis of the applicant's allegations. It is not intended — nor is it necessary — in the context of this Opinion to adopt a position on the difference in the views of the two Member States concerned.

24 Sec pages 6 to 8 and 11 of its pleading.

25 Sec page 36 of its pleading.

26 See page 25, paragraphs IV.4 and 5.

27 See page 6 of the joint opinion of Sir William Wade and Eli Lauterpacht, forming part of the answers to the questions put by the Court.

28 See page 3 of Opinion A and paragraphs A and B on page 1 of Opinion B, both of which are annexed to the applicant's reply to the objection of inadmissibility.

29 Case 18/74 Syndical Génériti du Personnel v Commission [1974] ECR 933.

30 Paragraph 7 of the judgment; emphasis added.

31 Sec the Opinion of Advocate General Mancini in Case 282/85 DEF1 v Commission [1986] ECR 2469, at page 2471. paragraph 2.

32 See paragraph 33 above.

33 Paragraph 4 of the Despatch cited above (in paragraph 30) appears to establish in such circumstances a rule favouring the jurisdiction of the Governor: It is desirable..., to draw attention to certain general exceptions which must qualify the list of defined domestic matters, in the sense that wider considerations would require responsibility to be retained by the Governor even though the subject matter may at first sight appear to be domestic. Such exceptions should, in my view, include all matters relating to Her Majesty (for example honours, flags, etc.); the application to Gibraltar of international agreements, the implementation in Gibraltar of international obligations and the participation of Gibraltar in specialised international bodies... However, the current practice appears in general to be oriented towards the preservation of the prerogatives of autonomy vested in the central administration (see the statement made to a UN committee on 6 August 1979 by the British representative, cited on page 9 of the joint opinion [see footnote 26] and in the oral procedure [see page 39 of the transcript of the hearing]; see also the United Kingdom's reply to the question why the Governor took no steps in the present case to oppose the application [see page 60 of the transcript of the hearing]. However, no precise conclusions can be drawn from such general practice which may moreover change —in relation to the legal status of the Government of Gibraltar.

34 See paragraph 5.5 of its observations on the objection of inadmissibility.

35 See also paragraph 7 of its reply to the questions put by the Court.

36 See paragraph 38 of its reply to the questions put by the Court.

37 Sec for example the Order of the Court in Case 152/87 Montgomery v Parliament [1987] ECR 4899, paragraph 9. The burden of proof may be shifted in special cases, particularly in relation to evidence regarding the commencement of the period for bringing proceedings, where this is dependent on some notification by the defendant (see, for example, the judgment in Case 58/88 Olbrechts v Commmion [1989] ECR 2643).

38 Sec pages 6 and 7 of the Joint Opinion (see footnote 26).

39 See paragraph II.8 on page 21 of the applicant's reply to the objection of inadmissibility.

40 Under the heading Public Services.

41 Under the heading Revenue-Contributing Services.

42 See in particular pages 31 to 33 of the application. It is curious that the applicant does not seek to establish any link between the interests specified, relating to its position under public law, and the defined domestic matters alleged in the application to have been affected.

43 See my Opinion in Joined Cases 62/87 and 72/87 Exécutif régional wallon v Commission [1988] ECR 1573 (paragraph 13 on p. 1582).

44 See the last footnote, and also the judgment in Case 222/83 Municipality of Dtfferdange v Commission [1984] ECR 2889.

45 According to the wording of the provisions produced by the applicant and the United Kingdom a right of consultation vests only in the Secretary of State (see Regulation 16 of the CAA Regulations 1983 and Regulation 21 of the CAA Regulations 1991). According to the letters produced by the applicant (Annexes B and C to the reply to the questions put by the Court)) however, the established convention appears to be to consult the applicant as well.

46 Case 11/82 Piraiki-Patraiki v Commission [1985] ECR 207.

47 Sec Annex 8 at the end of the Spanish Government's pleading.

48 The same applies to the Spanish aviation authority so far as concerns its competence. The division of competence between the Spanisn and United Kingdom aviation authorities as regards flights to and from Gibraltar appears to be the subject-matter of paragraph 1 of the Joint Declaration.

49 See the third recital in the preamble to Directive 83/416.

50 Case 169/84 Cofaz v Commission [1986] ECR 391, paragraph 30; emphasis added.

51 Sec in this regard the Opinion of Advocate General Warner in Joined Cases 103/78 to 109/78 Soaélé des Usines de Beaiiport v Conned [1979] ECR 17, at p. 31.

52 Sec paragraph 41 above.

53 In the discussions on this point at the hearing, none of the parties was able to point to a specific domestic legal remedy.

54 The Court has previously rejected, in its judgment in Joined Cases 106 and 107/63 Topfer v Commission [1965] ECR 405, an argument comparable to that advanced by the Spanish Government: see, on the one hand, the views expressed by the Court (p. 411 et scq.) and, on the other hand, those of Advocate General Roemer (p. 417 et seq.).

55 See, in addition to the orders referred to in the following three footnotes, the Order in Case 65/87 R Pfizer v Commission [1987] ECR 1691. In making that Order, the President of the Court, in giving his decision on an application for interim measures, expressly left open the question of the admissibility of the mam application (paragraph 15 of the Order).

56 Order of the Court in Case 352/87 Farzoo and Kortmann v Commission [1988] ECR 2281.

57 Order of the President of the Court of 13 July 1988 in Case 160/88 R Fédération européenne de la santé animale and Others v Council [1988] ECR 4121.

58 Orders of the Court in Case 138/88 Flourez and Others v Council [1988] ECR 6393 and Case 160/88 Fédération européenne de la santé animale v Council [1988] ECR 6399.

59 Consistent case-law in instances where the contested provision was contained in a regulation: see, for example, the judgment in Case 101/76 Koninklijke Scholten Honig v Council and Commission [1977] ECR 797, paragraph 6.

60 See the judgment in Case C-70/88 Parliament v Council (Chernobyl) [1990] ECR I-2041, paragraph 26.

61 See footnotes 56 and 57.

62 See paragraphs 68, 69 and 70 above.

63 That does not necessarily signify that the contested provision can be challenged under the second paragraph of Article 173 as a a decision addressed to another person. According to the logical approach applied in Case 160/88 R, a directive, even though it is addressed to the Member States, can produce normative effects through the domestic implementing measures. That admittedly somewhat problematical logical approach must also extend to the provisions of a decision which is addressed to the Member States. Under my approach, it is unnecessary to consider this matter further since, as will be pointed out below (in paragraph 97), the requirement regarding a decision under the second paragraph of Article 173 is subsumed in the broader requirement that the contested measure be of individual concern to the applicant. At the same time, the application of that principle ensures that the question whether provisions of secondary legislation can be challenged is always determined on the basis of the same objective criteria, irrespective of where those provisions occur (in a regulation, a directive or a decision).

64 See paragraph 71 above.

65 Opinion of 27 October 1992 in Case C-309/89 Codorniu v Council, not yet published in the ECR, paragraphs 22 to 37.

66 In my opinion the more recent judgment of 24 November 1992 in Joined Cases C-15/91 and C-108/91 Budil v Commission [1992] ECR I-6061 is consistent with that view. It is true that in that case the Court concentrated first and foremost on the nature of the measure requested by the applicant as a rule of general application (paragraphs 24 to 26). However, upon closer examination the subsequent grounds (paragraphs 27 to 30) can be seen to relate to the question whether the applicants were individually concerned by the contested refusal to adopt that measure.

67 Case 25/62 Plmmtmn v Commission [1963] ECR 95, at p. 107.

68 Case 123/77 UNICME v Council [1978] ECR 845, paragraph 16.

69 See in particular my Opinion in the case of Codorniu, cited above, paragraph 39 et seq.

70 Paragraphs 55 and 56 above.

71 See, for further details, paragraph 122 below.

72 See paragraphs 64 and 65 above.

73 See paragraphs 61, 64 and 65 above.

74 See paragraphs 58 and 59 above.

75 See, for example, the judgment in Case 11/82 Piraiki Patraiki v Commission [1985] ECR 207, paragraphs 28 to 31; sec also my Opinion in the case of Codorniu, cited above in footnote 64, paragraph 40.

76 Joined Cases 106/63 and 107/63 Töpfer v Commission [1965] ECR 547.

77 Case 62/70 Bock v Commission [1971] ECR 897.

78 See section I(2) of the Issues of Fact.

79 See my Opinion in Case C-313/90 CIRFS v Commission [1993] ECR I-1125, I-1148, paragraphs 83 to 86 and 88 to 90.

80 See the judgment in Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, and the Backl judgment (footnote 65 above).

81 Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501.

82 The Codorniu case was also concerned with interference with an existing position since the applicant in that case was being deprived of the possibility, of which it had hitherto availed itself, of using the designation Crémant for its sparkling wines. As in the Extramet case, that interference directly affected the applicant's competitive position (see paragraphs 49, 50 and 51 of my Opinion in Codorniu (cited in footnote 64).

83 In my view, this is also supported by the Buckl judgment (footnote 65 above), in which it was held that the applicant had no legally protected interest in the protective measures sought. As a logical consequence, the application of the principles laid down in Extramet to that case was not discussed.

84 See paragraphs 105 to 107 above.

85 See paragraph 114 above.

86 Order in Joined Cases 91/82 and 200/82 Chris International Foods v Commission [1983] ECR 417.

87 Case 282/85 DEFI v Commission [1986] ECR 2469, paragraph 16.

88 See the survey by K. Wolf in: Von der Groeben, Thiesing, Ehlermann, Kommentar zum EWG-Vertrag, 4th Edition 1991, on Article 37 of the Statute of the Court of Justice of the EEC.