Summary
Parties
Grounds
Decision on costs
Operative part
Keywords

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1. Preliminary rulings - Jurisdiction of the Court - Reference for a ruling on the interpretation of the Treaty - Impossible for a party to the main proceedings to challenge the jurisdiction of the Court

(EEC Treaty, Art. 177)

2. Preliminary rulings - Admissibility - Impossible for a party to the main proceedings to challenge the admissibility of the question by arguing that the national court took erroneous findings into account in making the reference

(EEC Treaty, Art. 177)

3. Competition - Community rules - Undertaking - Concept - Eurocontrol an international organization - Activities connected with the exercise of public authority - Excluded

(EEC Treaty, Arts 86 and 90)

Summary

1. The Court has jurisdiction to give preliminary rulings on the interpretation of Treaty provisions pursuant to Article 177 of the Treaty, which establishes direct cooperation between the Court and national courts or tribunals by way of a non-contentious procedure excluding any initiative of the parties who are merely invited to be heard.

Therefore, if a national court refers a question on the interpretation of the Treaty to the Court, a party to the main proceedings may not effectively challenge the jurisdiction of the Court.

2. A party to the main proceedings may not effectively challenge the admissibility of a question submitted for a preliminary ruling on the ground that the national court based its decision to set in motion the procedure under Article 177 of the Treaty on findings which the party claims are incorrect.

3. Articles 86 and 90 of the Treaty are to be interpreted as meaning that an international organization such as Eurocontrol does not constitute an undertaking within the meaning of those articles.

Taken as a whole, Eurocontrol' s activities, including the collection of route charges on behalf of the Contracting States, are connected with their nature, their aim and the rules to which they are subject, to the exercise of powers relating to the control and supervision of air space which are typically those of a public authority and are not of an economic nature justifying the application of the Treaty rules of competition.

Parties

In Case C-364/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Belgian Cour de Cassation for a preliminary ruling in the proceedings pending before that court between

SAT Fluggesellschaft mbH

and

European Organization for the Safety of Air Navigation (Eurocontrol),

on the interpretation of Articles 86 and 90 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida and M. Díez de Velasco (Presidents of Chambers), C.N. Kakouris, R. Joliet, F.A. Schockweiler, F. Grévisse (Rapporteur), M. Zuleeg, P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: G. Tesauro,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

- SAT, by Henriette Tielemans of the Brussels Bar,

- Eurocontrol, by Jacques Putzeys of the Brussels Bar,

- the German Government, by Ernst Roeder, Ministerialrat, and Claus-Dieter Quassowski, Regierungsdirektor, in the Federal Ministry of the Economy, acting as Agents,

- the United Kingdom, by S. Lucinda Hudson of the Treasury Solicitor' s Department, acting as Agent,

- the French Government, by Edwige Belliard, Assistant Director of the Legal Affairs Department in the Ministry of Foreign Affairs, and Catherine de Salins, Adviser on Foreign Affairs, acting as Agents,

- the Greek Government, by Nikolaos Mavrikas, Assistant Legal Adviser, and Maria Basdeki, authorized State representative, in the State Legal Service, acting as Agents,

- the Commission of the European Communities, by Bernd Langeheine, a member of its Legal Service, assisted by Géraud de Bergues, a national expert on secondment to the Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the plaintiff in the main proceedings, the defendant in the main proceedings, the Greek Government, the French Government and the Commission, at the hearing on 28 September 1993,

after hearing the Opinion of the Advocate General at the sitting on 10 November 1993,

gives the following

Judgment

Grounds

1 By order of 10 September 1992, which was received at the Court on 18 September 1992, the Belgian Cour de Cassation referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 86 and 90 of the Treaty.

2 That question was raised in the course of proceedings between SAT Fluggesellschaft mbH (hereinafter referred to as "SAT"), an airline company governed by German law, and the European Organization for the Safety of Air Navigation (hereinafter referred to as "Eurocontrol").

3 Eurocontrol is an international organization, whose seat is in Brussels, which was established by the Convention of 13 December 1960. A Protocol of 12 February 1981, which came into force on 1 January 1986, substantially amended the original Convention (hereinafter referred to as "the amended Convention"). The Contracting States are the Kingdom of Belgium, the French Republic, the Federal Republic of Germany, the Greek Republic, Ireland, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland, and the Cypriot Republic, the Hungarian Republic, the Maltese Republic, the Swiss Confederation and the Turkish Republic.

4 In accordance with Article 2(1)(l) of the amended Convention, Eurocontrol' s function is in particular to establish and collect the charges levied on users of air navigation services in accordance with the Multilateral Agreement relating to the Collection of Route Charges, signed on 12 February 1981, on behalf of the abovementioned Contracting States and the non-member States parties to that Agreement. Those non-member States are Austria and Spain.

5 The dispute which Eurocontrol has brought before the Belgian courts concerns the recovery of route charges amounting to USD 3 175 953, payable by SAT for flights made during the period from September 1981 to December 1985.

6 In order to justify its refusal to pay the charges, SAT pleads that Eurocontrol has infringed Articles 86 and 90 of the Treaty. It claims that the procedures followed by Eurocontrol, in fixing charges at different rates for equivalent services, of an amount varying in particular from State to State and from year to year, constitute an abuse of a dominant position within the meaning of Article 86 of the Treaty.

7 Those are the circumstances in which the Belgian Cour de Cassation, hearing the action, has referred to the Court for a preliminary ruling the following question:

"Does the European Organization for the Safety of Air Navigation established by the Convention signed at Brussels on 13 December 1960, as amended by the Protocol made at Brussels on 12 February 1981, constitute an undertaking within the meaning of Articles 86 and 90 of the Treaty of Rome of 25 March 1957 establishing the European Economic Community?"

The jurisdiction of the Court

8 Eurocontrol claims that, as an international organization, whose relations with the Community are governed by the rules of public international law, it is outside the jurisdiction of the Court. The Court therefore has no jurisdiction to rule on the question submitted.

9 The objection that the Court lacks jurisdiction must be rejected. The Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaty provisions pursuant to Article