Opinion of the Advocate-General
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Mr President,
Members of the Court,
A - Preliminary remark
1 . In the proceedings for a preliminary ruling with which the Court has to deal again today, we have heard the parties on three separate occasions . Whilst the continuation of the oral procedure was largely determined by the change in the legal situation, its reopening was necessitated chiefly by the partial renewal of the Court . Accordingly I can refer back to a large degree to the Opinion which I delivered in this case on 28 April 1988, and confine myself today to the following additional observations .
B - Opinion
The development of the legal situation
2 . Even though the legal instruments adopted by the Council on 14 December 1987 ( 1 ) constituted the major change in the legal situation, it must also be observed that since then the Commission has issued a series of implementing measures, to which I have already referred in paragraph 17 of my Opinion of 28 April 1988 . ( 2 )
3 . Of those implementing regulations, Commission Regulation No 2671/88 of 26 July 1988 on certain block exemptions is of special relevance . It implements in this sector the third indent of Article 2(2 ) of Council Regulation No 3976/87 relating to consultations for the common preparation of proposals on tariffs, and provides in Article 8 - in accordance with Article 4 of Regulation No 3976/87 - that it is to apply with retroactive effect to agreements which were in existence at the date of its entry into force, from the time when its conditions of application were fulfilled .
4 . The prohibition set out in Article 85 of the EEC Treaty has been effective since the entry into force of Regulation No 3976/87 on 1 January 1988 or at least since the entry into force of Commission Regulation No 2671/88 on 31 August 1988 . Accordingly, it must be taken into account in deciding this case since the case is concerned with restraining particular conduct in the future . Consequently, it is not the legal position at the beginning of the proceedings which counts but that at the end .
5 . Both Article 2 of Regulation No 3976/87 and Article 4 of Regulation No 2671/88 release only voluntary and non-binding tariff consultations from the prohibition of agreements and concerted practices laid down in Article 85(1 ) of the EEC Treaty . The tariff or price agreements before the national court are concerned with agreed tariffs ( 3 ) whose application is prescribed in a binding manner ( compulsory tariffs ). Such agreements cannot qualify for exemption under the terms of the aforesaid regulations . Consequently, the prohibition laid down in Article 85(1 ) of the EEC Treaty continues to apply as regards intra-Community air transport services and the answer proposed in my Opinion to Question 1 stands .
Validity of competition law in the case of connections with non-member countries
6 . In paragraph 21 of my Opinion of 28 April 1988 I stated, by reference to my Opinion of 24 September 1985 in Joined Cases 209 to 213/84, ( 4 ) that Community competition law might also be applied to circumstances involving connections with non-member countries where the relevant agreements or concerted practices might have effects within the Community .
7 . I adhere to this view; however, I would ask that it be construed in accordance with the Court' s judgment of 27 September 1988 in Joined Cases 89, 104, 114, 116, 117 and 125 to 129/85, ( 5 ) which has since been delivered .
Direct effect of Article 86 of the EEC Treaty
8 . In Joined Cases 209 to 213/84 the Commission expressed the view that the absence of the implementing measures referred to in Article 87 did not mean that national courts could not, where the matter arose, be called upon to rule on the compatibility of an agreement or a particular practice with the competition rules since those rules had direct effect . ( 6 )
9 . The Commission then inferred from that judgment on Article 85 that in the absence of the implementing provisions needed for the systematic application of Article 86 action could be taken against abuses under Articles 88 and 89 of the EEC Treaty only . Since such measures had not yet been taken it had to be inferred from that judgment that in this context Article 86 also did not have any direct legal effects which the national court would have to take into account .
10 . The Commission reiterated this view at the hearing on 6 May 1987, albeit no longer as categorically .
11 . That view was emphatically endorsed by a Member State submitting for the first time observations on this case after the reopening of the oral procedure .
12 . However, at the relevant ( the most recent ) hearing on 15 November 1988 the Commission conceded that there were without any doubt good arguments against its former view . Without definitely abandoning its previous position it was prepared to admit that in the case of Article 86 the absence of implementing provisions did not have the same weight as it did in the case of Article 85, and that furthermore it could not readily make out any legal impediments to the direct application of Article 86 to air transport services between Member States and non-member countries . In the final analysis it could only leave that question to the Court to assess .
13 . In those circumstances I can see no reason for diverging as regards the sector of air transport services between Member States and non-member countries from established case-law on the direct applicability of Article 86 of the EEC Treaty, of which I gave an account in my Opinion of 28 April 1988 .
14 . To take the opposite view would have the result that there would be no real legal redress against the abuse of a dominant position in the relevant sector; that would be hard to reconcile with the European Economic Community' s character as a community governed by the rule of law .
15 . Even if the ordinary courts are not the Member State authorities responsible for questions of competition law for the purposes of Article 88 of the EEC Treaty, they must nevertheless be able to resolve questions of competition law relevant to their own decisions . Admittedly it must be granted that in order to resolve questions of competition law it may be necessary to assess complex factual situations and the ordinary courts might sometimes lack the powers to clarify the facts - in such a situation they would if necessary have to decide in accordance with the rules on the burden of proof : however, that cannot release the relevant courts from applying the law in force . Lastly, difficulty in applying a legal rule does not constitute a criterion for determining its relevance .
16 . In so far as Article 234 of the EEC Treaty has been raised by a Member State with regard to air transport agreements, I would refer to my Opinion of 24 September 1985 in Joined Cases 209 to 213/84 . ( 7 ) My observations on the relationship of "pre-existing agreements" with non-member countries to Community law apply here, too . Only if it has been established that in spite of compliance with the provisions of the second paragraph of Article 234 of the EEC Treaty there was no possibility of adapting the pre-existing agreements to suit Community law, can it be held that the pre-existing agreements in question take precedence over Article 86 of the EEC Treaty . This is likely to be extremely rare .
The criteria for application of Article 86 of the EEC Treaty
17 . In paragraph 24 of my Opinion of 28 April 1988 I prefaced my discussion of the application of Article 86 of the EEC Treaty in this case by the observation that the Court is not empowered in proceedings brought under Article 177 of the EEC Treaty to apply Community law to the actual facts of the case . Instead it must confine itself to giving the national court criteria for its own decision . Accordingly I indicated individual elements which appeared relevant for the application of Article 86, without anticipating a comprehensive assessment of the facts by the domestic court . Consequently I confined myself chiefly to taking up some of the aspects adduced by the Commission with regard to the application of Article 86 . ( 8 ) I could be brief since the court making the reference - as was confirmed at the hearing on 15 November 1988 - is an organ (" Senat ") responsible for cases of unfair competition of a Member State' s highest civil court .
18 . Finally, as far as concerns the relationship between Article 86 and Article 85(3 ) of the EEC Treaty in the event of a possible joint dominant position held by oligopolists, I consider - contrary to the view taken by the representative of the government of a Member State - that the passage quoted at the last hearing from the Court' s judgment of 13 February 1979 in Case 85/76 ( 9 ) is to be understood rather as establishing the precedence of Article 86 of the EEC Treaty over any decision of exemption taken pursuant to Article 85(3 ). This is also supported by the 10th recital in the preamble to Commission Regulation No 2671/88 to the effect that that regulation is without prejudice to Article 86 of the Treaty . In any event, I do not consider that the Commission can be allowed by means of a declaration of exemption under Article 85(3 ), that is to say by means of a measure of secondary legislation, to permit the undertakings concerned to infringe Article 86 of the EEC Treaty, that is to say a provision of the treaties establishing the Communities . For the rest, however, I do not consider it necessary to go any deeper into this question since agreements eligible for exemption should not be involved here .
Scope ratione temporis of the judgment ( Article 86 of the EEC Treaty )
19 . At the hearing it was argued that on the basis of the judgment of 8 April 1976 in Case 43/75 ( 10 ) Article 86 of the EEC Treaty should be declared to have direct effect only for the future, on grounds of legal certainty . However, the immediate response was to ask what would be new about applying Article 86 of the EEC Treaty .
20 . That objection cannot be dismissed out of hand since it was clear from the established case-law of the Court that Article 86 is capable of direct effect .
21 . Furthermore, in its judgment of 4 April 1974 in Case 167/73 ( 11 ) the Court stated, albeit only by way of obiter dictum, that air transport is subject to the general rules of the Treaty and hence also to the provisions relating to competition . It was not until its judgment of 30 April 1986 in Joined Cases 209 to 213/84 ( 12 ) that the Court, referring to the judgment of 6 April 1962 in Case 13/61, ( 13 ) restricted the direct applicability of Article 85 as regards its practical effectiveness, but not that of Article 86, which was not at issue in that case .
22 . As I have already mentioned, ( 14 ) the Commission, which under Article 155 of the EEC Treaty is to ensure that the provisions of the Treaty are carried out, has not in the past adopted a clear-cut position with regard to the direct applicability of Article 86 in the field of air transport services between Member States and non-member countries . Also, it was not until 1987 that the Council issued the relevant regulations ( 15 ) for implementing in the field of air transport services the principles laid down in Articles 85 and 86, that is to say after the expiry of the period of three years from the entry into force of the EEC Treaty laid down in Article 87 .
23 . The conduct of the Community institutions might therefore have led the airlines concerned to assume that in any event until implementing provisions were issued there was for the time being no possibility of bringing an action against anti-competitive practices directly before the national courts .
24 . In those circumstances it must be granted that final legal clarity as to the direct applicability of Article 86 in the field of air transport services will not obtain until the Court delivers its judgment in this case .
25 . For that reason, I would refer expressly to the Court' s statements made in the judgment of 2 February 1988 in Case 24/86 ( 16 ) on the effect ratione temporis of an interpretative judgment, and propose that exceptionally, in application of the principle of legal certainty inherent in the Community legal order, the Court should restrict the possibility of relying upon the interpretation to be given in the judgment in the case of circumstances concluded in the past . This is necessitated by the need not to call into question an inestimable number of transport agreements .
C - Conclusion
26 . Subject to what I have said above I adopt my Opinion of 28 April 1988 and propose that the questions submitted by the Bundesgerichtshof be answered as I suggested in that Opinion .
27 . In addition, I suggest that the Court should declare that the direct effect of Article 86 of the EEC Treaty may not be relied on in respect of scheduled air services between Member States and non-member countries in the case of circumstances concluded prior to the delivery of the judgment in this case, provided that the parties concerned did not bring legal proceedings or submit a claim before that date .
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