OPINION OF ADVOCATE GENERAL
LENZ
delivered on 4 May 1993 ( *1 )
Summary
A — Introduction
B — Analysis
I. The ‘capacity’ of the applicant to bring the action
1. The applicant's capacity as a legal person
(a) The status of Gibraltar
(b) The objections of Spain and the Council
(c) The objections of the United Kingdom
2. The question whether the action has been brought by the competent organ of the applicant
II. The applicant's complaint
III. The question whether the contested measure is of direct concern to the applicant
IV. The objection based on the ‘nature of the act appealed against’
1. The significance of the fact that the contested provision forms part of a directive
2. The question whether the contested provision is in the nature of a decision
V. The question whether the contested provision is of individual concern to the applicant
1. The meaning of that characteristic and the interests asserted
2. The question whether the contested provision is of indivdual concern to the applicant in the light of the interests asserted
(a) The applicant's ownership of the terminal
(b) The applicant's capacity as an authority entitled to levy charges
(c) The applicant's position as an authority responsible for looking after the wellbeing of the inhabitants of Gibraltar
C — Conclusion
Mr President,
Members of the Court,
A — Introduction
1.
This Opinion concerns the admissibility of a direct action in which the Government of Gibraltar is contesting a provision of Council Directive 89/463/EEC amending Council Directive 83/416/EEC concerning the authorization of scheduled interregional air services for the transport of passengers, mail and cargo between Member States. ( 1 )
2.
Directive 83/416, ( 2 ) which Directive 89/463 amended, constituted an initial step towards the liberalization of the conditions governing access to the market for sceduled air services. According to the principle laid down in Articles 3 and 6 of Directive 83/416, authorization to operate an interregional air service already approved by the Home State of the air carrier concerned could be refused by the other State affected only under certain exhaustively listed conditions.
3.
However, the scope of those rules was subject to strict limitations, relating to three aspects in particular. First, they applied as a general rule only to flights operated over stages of 400 kilometres or more (Article 1(a)). Secondly, they were restricted to services by aircraft having a capacity of not more than 70 passenger seats or a maximum takeoff weight of not more than 30 tonnes (Article 1(b)). Lastly, they were subject to the condition that there should exist no indirect service, ( 3 ) nor any connection via neighbouring airports (Article 3(2), second subparagraph); and even where the lastmentioned condition was fulfilled, the other Member State concerned could refuse, as the Home State, to grant the authorization where the air traffic connection in question was already satisfactorily catered for, in qualitative and quantitative terms, by existing direct air services between the two airports concerned (Article 6(1)(c)).
4.
That position remained the same following the first amendment of the directive by Directive 86/216/EEC, ( 4 ) which merely took into account the consequences of the accession of Portugal, by means in particular of the classification of Portuguese airports.
5.
However, all three of the aforementioned limitations were lifted by the directive in question here once experience had shown that only a few air services had been authorized in accordance with the directive as it originally stood. ( 5 ) Furthermore, the rules regarding the sharing of capacity pursuant to Articles 3 and 4 of Decision 87/602, ( 6 ) which had meanwhile been laid down in the course of the application of the so-called first package of measures aimed at the liberalization of air traffic, ( 7 ) were extended to cover air services falling within the ambit of Directive 83/416.
6.
However, Article 2 of the contested directive, Directive 89/463 as outlined above, contains special provisions in respect of Gibraltar airport. Those provisions take into account a difference of opinion between the Kingdom of Spain and the United Kingdom, relating to the question of sovereignty over the territory in which the airport is situated.
7.
Paragraph 1 of that provision contains the following general saving clause, to which the application of the directive is subject in so far as concerns that problem:
‘The application of this Directive to the airport of Gibraltar shall be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated.’
8.
Paragraph 2 specifies the date from which the directive is to apply to Gibraltar airport, as follows:
‘Application of the provisions of this Directive to Gibraltar airport shall be suspended until the arrangements in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 have come into operation. The Governments of the Kingdom of Spain and the United Kingdom will so inform the Council on that date.’
9.
It is that paragraph which forms the subject-matter of the present action.
10.
The Joint Declaration ( 8 ) mentioned therein refers to the negotiations being held to resolve the differences of opinion regarding Gibraltar ( 9 ) and to the forthcoming promulgation of the rules contained in the first package of measures ( 10 ) (which had been delayed because of those differences of opinion ( 11 )). The steps considered by the parties to be appropriate in those circumstances included the erection by the Spanish authorities of a check-in building (terminal) on the northern side of the existing frontier fence. Passengers travelling from and to places located to the north of the fence were to have direct access to that new terminal. The existing terminal, which, like all the other airport facilities, is situated on the territory to which the difference of opinion relates, was to be used by the other passengers. Pursuant to Paragraph 3.3 of the Declaration, where appropriate, passengers were to be subject to customs and immigration controls in the respective terminals.
11.
The application of the matters agreed in the Joint Declaration, upon which the application of Directive 89/463 to Gibraltar airport is rendered contingent by the contested provision, is governed by Paragraph 8 of the Declaration. That paragraph refers to Paragraph 3.3 and provides as follows:
‘The above arrangements will come into operation when the British authorities have notified the Spanish authorities that the legislation necessary to give effect to paragraph 3.3 above is in force, or on completion of the construction of the Spanish terminal, whichever is the later, but in any event not more than one year after the notification referred to above.’
12.
It is established that those preconditions for the application of the Joint Declaration have not yet been fulfilled.
13.
As is apparent from the above outline of the relevant circumstances, the legal position in respect of scheduled regional air services from and to Gibraltar results, in view of the provision at issue in this case, from Directive 83/416, as amended by Directive 86/216.
14.
That position has not been altered by legal developments in the course of these proceedings. It is true that those developments include the revocation of Directive 83/416 by Regulation No 2343/90, ( 12 ) which has in turn been revoked by Regulation No 2408/92. ( 13 ) However, Regulation No 2343/90 contains in Article 1(3) a provision which is substantively the same as the provision at issue in this case. Inasmuch as ‘application of the provisions of this Regulation’ to Gibraltar airport is thereby to be ‘suspended’ until the Joint Declaration comes into operation, that also applies to the revocation of Directive 83/416 pursuant to Article 16 of the Regulation. That revocation must therefore be regarded as suspended on the same conditions as the other provisions of the regulation. Regulation No 2343/90 thus in effect contained, as regards the rules applying to scheduled flights to and from Gibraltar, a reference to Directive 83/416. That reference is in turn taken up by Regulation No 2408/92, Articles 1(3) and 15 of which correspond to Articles 1(3) and 16 of Regulation No 2343/90. There is thus a chain of reference leading back to Directive 83/416.
15.
Mention should also be made of the fact that Article 1(6) of Decision 87/602, which is referred to above and which forms part of the first package of measures, contains a provision similar to that contested in this case. However, Article 1(6) has not been called into question by the applicant or anyone else. On the other hand, Article 1(3) of Regulation No 2343/90 and Article 1(3) of Regulation No 2408/92 have been contested, the former by the Gibraltar Development Corporation, ( 14 ) which has apparently taken over ownership of the existing terminal from the applicant in the present proceedings on 28 June 1990, and the latter by that Corporation jointly with the Government of Gibraltar. ( 15 ) Furthermore, both of those parties have contested Article 1(3) of Regulation No 294/91, ( 16 ) relating exclusively to the carriage of cargo. ( 17 ) That regulation also contained a provision similar to the one at issue in this case. ( 18 )
16.
In this case the Government of Gibraltar claims that the Court should:
—
annul Article 2(2) of Directive 89/463 at least in so far as it applies to the applicant;
—
take such further or different steps as justice may require;
—
order the Council to pay the costs of the proceedings.
17.
The Council has raised (as in the other three actions) an objection of inadmissibility contending that the Court should:
—
dismiss the claim as inadmissible;
—
order the applicant to pay the costs of the proceedings.
18.
The Kingdom of Spain, the United Kingdom and the Commission support that objection.
19.
The Government of Gibraltar claims for its part that the Court should reject that objection and order the Council and the interveners to pay the costs occasioned thereby, or alternatively that it should reserve its decision until final judgment is given.
20.
By order of the Court, separate oral argument has been presented regarding the objection of inadmissibility. My Opinion is thus confined to the question of admissibility.
B — Analysis
21.
In its objection, the Council contests the admissibility of the application in four respects:
—
the applicant is not ‘qualified’ to bring the action;
—
the nature of the contested provision is such that the application is inadmissible;
—
that provision is not of direct concern to the applicant;
—
it is not of individual concern to the applicant.
22.
All of those objections are rightly based on the fact that the admissibility of the application turns on the second paragraph of Article 173 of the Treaty and not the first paragraph of that provision. The applicant itself has based its action on the second paragraph of Article 173. Furthermore, all the parties are agreed that the applicant does not constitute a Member State within the meaning of the first paragraph of that provision. ( 19 )
23.
I. 1. The first objection raised on that basis, relating to the applicant's lack of ‘capacity’, concerns first and foremost the requirement laid down by the second paragraph of Article 173 that an applicant must be a natural or legal person.
24.
The Council and Spain on the one hand and the United Kingdom on the other dispute the applicant's capacity as a legal person from different standpoints.
25.
(a) For a proper understanding of that assertion, it is necessary to bear in mind various undisputed facts regarding the status of Gibraltar and the rules laid down by the United Kingdom in respect of that territory.
26.
Gibraltar is one of ‘Her Majesty's dominions’. According to a definition given by one learned writer, ( 20 ) these are dependent or independent territories under the sovereignty of the Crown. In Community law, the effect of this is that Gibraltar is regarded as a European territory, within the meaning of Article 227(4) of the Treaty, for whose external relations a Member State (in this case, the United Kingdom) is responsible. ( 21 )
27.
However, as previously stated, the extent of that territory is a matter of dispute between Spain and the United Kingdom as regards the part of Gibraltar in which the airport is situated. ( 22 )
28.
By an Order in Council, the Gibraltar Constitution Order 1969, Her Majesty laid down certain rules for the exercise of public authority in that dominion which are set out in Annex 1 to that Order (hereinafter ‘the 1969 Constitution’). The chapters of that legislation are entitled: ‘Protection of Fundamental Rights and Freedoms of the Individual’, ‘The Governor and the Deputy Governor’, ‘The Legislature’, ‘The Executive’, ‘The Judicature’, ‘Finance’ and ‘The Public Service’ (followed by ‘Miscellaneous’).
29.
Those provisions establish inter alia certain organs, the functions of which are described in detail. Those organs include the Governor. Under section 18, he acts as the representative of Her Majesty. Section 45(1), in the chapter regarding the executive, provides that ‘the executive authority of the Government of Gibraltar shall vest in the Governor on behalf of Her Majesty’. The executive also includes the Council of Ministers, consisting of a Chief Minister and other Ministers (numbering not less than four nor more than eight). By section 48(1) of the 1969 Constitution the Governor may charge any member of the Council of Ministers with responsibility for any business of the Government of Gibraltar (including the administration of any department of government) relating to any defined domestic matter. Section 50(1) provides, subject to the provisions of that section, that the Governor is to consult with, and act in accordance with the advice of, the Council of Ministers in the formulation of policy relating to any defined domestic matter and in the exercise of any power conferred upon him by the 1969 Constitution or any other law, to the extent that that power relates to a defined domestic matter.
30.
Under section 55, ‘defined domestic matters’ means such matters as may be specified by the Governor, acting in accordance with instructions given by Her Majesty through a Secretary of State. However, there was appended to the 1969 Constitution a Despatch issued by the Foreign and Commonwealth Office, containing a list of ‘defined domestic matters’ which the parties regard as binding. That list is preceded by explanatory notes providing that responsibility for all matters which are not ‘defined domestic matters’, for example external affairs, is to devolve directly upon the Governor.
31.
Furthermore, the 1969 Constitution uses the term ‘Government (of Gibraltar)’, for example in the aforementioned sections 45 and 48, without however expressly defining the meaning of that term.
32.
(b) The Council ( 23 ) and Spain ( 24 ) doubt that the applicant has legal personality, because according to them the applicant wrongly equates the ‘Government of Gibraltar’ with the Council of Ministers. Spain asserts in particular that if the application is being made only upon instructions from the Chief Minister, it cannot be maintained that it has been made by the Government of Gibraltar; it can only have been made by the Council of Ministers. All of the applicant's assertions regarding its legal personality are thus irrelevant.
33.
In my view, those objections relating to the identity of the applicant should not be upheld. Upon first lodging its application, ( 25 ) but also, in particular, in its subsequent reply to a question expressly put by the Court, ( 26 ) the applicant has made it clear that it construes the term ‘Government of Gibraltar’ to mean all of the organs specified in the 1969 Constitution (although other statements made in that regard by the applicant are more equivocal ( 27 )). We must accept that designation given by the applicant (see Article 38(1)(a) of the Rules of Procedure).
34.
(c) Unlike the Council and Spain, the United Kingdom's doubts regarding the legal personality of the applicant are based on an appraisal of the body described in the 1969 Constitution as the ‘Government of Gibraltar’.
35.
The applicant regards that body as a legal person within the meaning of the second paragraph of Article 173. The Gibraltar Government, it says, is empowered to raise and retain taxes, to hold and dispose of real and personal property as the owner or lessee thereof, to demise real property, to enter into contracts, to appear before the courts of Gibraltar and of the United Kingdom and to conclude intergovernmental agreements with the Government of the United Kingdom, such as those concluded in relation to the business carried on by shipyards and the pensions of Spanish employees.
36.
In its reply to the Council's objection, it states that the correct name of the legal person is ‘the Crown in right of Gibraltar’. In its reply to the questions put by the Court it declares that the Government of Gibraltar is in the same position as the government of any other British colony, the distinct legal personality of which as a matter of domestic law has never been doubted. The language in which that personality has been described, namely ‘the Crown in right of Gibraltar’ or ‘the Crown in right of Bermuda’ in no way diminishes the separateness of each personality.
37.
The United Kingdom's view in that regard is that Article 173 differentiates between actions brought by Member States and Community institutions on the one hand and by natural and legal persons on the other, inasmuch as it is only the latter who have to meet the specific conditions of admissibility contained in the second paragraph. Consequently, it is not possible for the same legal entity simultaneously to be a privileged applicant (as a Member State) and a legal person. A clear distinction must therefore be drawn between legal persons within the meaning of the second paragraph of Article 173 and administrative authorities which constitute the central departments of State or whose activities are so closely linked to those of the central administration that they must be excluded from the scope of the second paragraph of Article 173. The Government of Gibraltar, however, is merely an emanation of the Crown exercising certain executive powers on behalf of the Crown in Gibraltar. The capacity of that Government to own land and to sue and be sued exists only in order to facilitate actions being brought by or against the Crown. The United Kingdom maintains that the Government of Gibraltar is not thereby given the status of a legal person within the meaning of the second paragraph of Article 173, since it is not thereby distinguished from the central governing authority of the State. The meaning of the term ‘legal person’ under Community law is not necessarily the same as in the various legal systems of the Member States.
38.
It should be observed that in fact that difference of opinion does not relate to the interpretation of the term ‘legal person’ in the second paragraph of Article 173.
39.
The applicant and the United Kingdom are agreed that what is involved is a concept of Community law. Both parties to the action, especially the applicant, further appear to be proceeding on the basis that a body which constitutes merely a non-autonomous part of the administration of another body cannot be regarded as a legal person within the meaning of the second paragraph of Article 173. This is consistent with the case-law of the Court. In the case of Syndicat Général ( 28 ) the Court held, with regard to the Commission's objection that the applicant trade union lacked capacity to institute proceedings, that:
‘Under its rules, its constitutional structure is such as to endow it with the necessary autonomy to act as a responsible body in legal matters.’ ( 29 )
40.
That requirement applies in relation to all bodies, regardless of whether they derive from private or public law. It is most closely linked to the nature of the second paragraph of Article 173 as an instrument for the protection of interests which the applicant may assert on the basis of its own rights. Applying that logic, an applicant which is not a natural person can be regarded as a legal person only if it possesses the requisite autonomy to be capable of having its own rights.
41.
The answer to the question whether an applicant body fulfils those requirements in a particular case depends upon its objective legal status, deriving as a general rule from domestic law (including law imposed by treaty), without the consequences of such status being necessarily the same under Community law and under domestic law. The autonomy of the applicant body may be limited in that regard to individual rights, without its being thereby prevented from qualifying as a legal person within the meaning of the second paragraph of Article 173. ( 30 )
42.
In the present case it is only the provisions of the 1969 Constitution which might be the source of such autonomous status on the part of the ‘Government of Gibraltar’. In line with those considerations, the dispute between the applicant and the United Kingdom concerns in essence the consequences of those provisions for the purposes of the second paragraph of Article 173 of the Treaty.
43.
In those circumstances, the Court, in order to reach its decision on the legal personality of the applicant, must undertake an interpretation of domestic constitutional law. However, this proves to be anything but straightforward:
—
the precise relationship between the ‘Government of Gibraltar’ and the central administration of the Crown is not, so far as we have been informed, defined in any legal text;
—
according to the definition ( 31 ) given by the applicant, the Government of Gibraltar comprises not only organs representing the interests of the central administration (the Governor) but also organs which embody the interest of the local community in its own autonomy (the Council of Ministers);
—
the relative importance of those two components is not readily ascertainable; it might depend on the relevant practice in the event that, at first sight, the same matter is capable of being classified as a defined domestic matter and as a matter reserved to the Governor (for example in the sphere of external affairs). ( 32 ) The United Kingdom correctly refers in that regard to the problem of the overlapping of spheres of competence.
44.
It should on the other hand be observed that there can be no question of the applicant manifestly lacking legal personality. The United Kingdom's observations reveal certain inconsistencies in that regard. In its arguments regarding the legal personality of the applicant, the United Kingdom presupposes inter alia that an application such as the present one falls, in view of the matters dealt with, within the competence of the Governor. ( 33 ) That appears to me to be a problem regarding due representation. Does it mean that the legal autonomy of the applicant Government is sufficient for the purposes of the second paragraph of Article 173 and that in reality the only question arising is that of due representation? ( 34 )
45.
In its reply to the questions put to it by the Court with regard to the question of ownership of the various airport installations, the United Kingdom also stated that on ‘26 September 1990 the land on which the terminal stands was transferred to the Gibraltar Government by the Secretary of State for Defence, i. e., from the Crown in right of the Government of the United Kingdom to the Crown in right of the Government of Gibraltar’. ( 35 ) I wonder how it is that ownership can be transferred in the manner described where the transferor and the transferee are simply different embodiments of one and the same (legal) person.
46.
In the light of such difficulties, I propose that this point be dealt with only in so far as may be absolutely necessary for the purpose of deciding the case. I would also advise against simply resolving the question arising on the basis of the rules on the burden of proof. In direct actions it is without doubt incumbent on the applicant to set forth and prove the facts upon which, in the light of the applicable conditions (in this case, the second paragraph of Article 173), the admissibility of its application depends. ( 36 ) However, in my view the Court's jurisdiction to examine of its own motion the admissibility of an action (Article 92(2) of the Rules of Procedure) includes the ancillary power to procure any information which may be necessary for such examination, even where no offer to produce evidence has been made by the party upon whom the burden of proof rests. This might involve in particular the production of (additional) expert opinions from renowned universities.
47.
As I shall demonstrate in due course, however, it is not in my view necessary to deal conclusively with the question of the legal personality of the applicant.
48.
2. I propose that the issue whether this action has been brought by the competent organ of the Government of Gibraltar be treated in the same way. As appears from the application, the action was brought on the instructions of the Chief Minister. According to the applicant, the decision to bring the proceedings was made by the Council of Ministers, ( 37 ) and the Chief Minister requested the applicant's legal representatives, on the instructions of the Council of Ministers, and in the name of the Government of Gibraltar, to initiate the action. ( 38 ) The applicant takes the view in that regard that the Council of Ministers acted as the competent organ for the Government of Gibraltar, since these proceedings concern matters which are specified as defined domestic matters in the Despatch, under the designations ‘Civil Air Terminal’, ( 39 )‘Tourism’, with the subdivision ‘Tourist Promotion in Gibraltar’, and ‘Economic Development (as hitherto)’. ( 40 ) The fact that the present dispute is in some measure also concerned with the external affairs of Gibraltar (the implementation of an agreement with Spain) is irrelevant, according to the applicant, since it is possible to establish a connection between almost any defined domestic matter and external affairs. At all events, the Governor, despite having been informed of the proposal to initiate the action, took no steps to oppose it or to state, pursuant to section 55 of the 1969 Constitution, that the subject-matter of the action was not a defined domestic matter.
49.
On the other hand, the Council — which also pleads in that regard a lack of ‘capacity’ on the part of the applicant — and the United Kingdom dispute the competence of the Council of Ministers as an organ of the Government of Gibraltar. Of the various organs of the Government, the matter falls, in their view, within the competence of the Governor, who is responsible for external affairs. The present action relates to the activities of the Community, the implementation of the EEC Treaty in Gibraltar, international air transport and relations between the United Kingdom and Spain, even though the matter in question may appear at first sight to be ‘domestic’. The United Kingdom further refers to the fact that the Governor did not authorize the initiation of the action.
50.
In the course of the oral procedure, the United Kingdom conceded, however, that it is relying on the connection of this dispute with external affairs only in so far as the Government of Gibraltar's action is based upon its governmental interests, but not, on the other hand, in so far as the applicant is relying on its interests as owner of the terminal. This appears to me yet another reason for not going any further into the question of due representation.
51.
II. If we thus assume for the sake of argument that the applicant possesses the capacity of a legal person and that the Council of Ministers (represented by the Chief Minister), in acting on behalf of the Government of Gibraltar, did so in accordance with the 1969 Constitution, there remain to be considered the other objections regarding admissibility raised by the Council and by the interveners.
52.
Those objections are primarily based upon the contention that the contested measure is not of direct and individual concern to the applicant. That assertion necessitates a number of observations as to the nature of the interests upon which the applicant bases its case, thereby enabling the nature and scope of the applicant's complaint to be determined.
53.
The interests asserted fall into two groups: first, the applicant's interest in the commercial exploitation of its ownership of the existing terminal at the time when the action was initiated; and secondly, its interests as the holder of sovereign powers, in its capacity as an authority concerned with the procedure for the approval of interregional air services, as the authority responsible for the wellbeing of the inhabitants of Gibraltar, and as the authority levying fees and taxes in connection with air transport and related matters. ( 41 )
54.
The applicant's submissions regarding its interests as the holder of sovereign rights are not irrelevant to its complaint solely because it classifies its interests as sovereign. The possibility cannot be excluded in principle that bodies vested with sovereign powers within the Community which are not Member States should enjoy, as regards their interests, including those of a public-law nature, the legal protection afforded by the second paragraph of Article 173. ( 42 ) However, they must be able to demonstrate that the contested measure is of direct and individual concern to them. ( 43 )
55.
As far as the applicant's ground of complaint is concerned, reference must be made to a factor forming the common denominator of the interests asserted. The applicant's view is that it would profit in all those respects from the increase in air traffic which would result from the application of Directive 89/634 to Gibraltar airport. The most attractive routes could be operated economically only with aircraft having more than 70 passenger seats. The Council and the interveners do not appear to wish to contest the fact that the application of Directive 89/463 to Gibraltar airport would give a genuine chance of an increase in the volume of traffic to and from that airport. The Commission has merely stated (without putting forward any substantiated counterarguments) that the applicant has failed to prove its assertions in that respect. That argument is rendered all the less apposite by the fact that the Joint Declaration of 2 December 1987 and the provision at issue themselves show that Spain and the United Kingdom were expecting an increase in air traffic.
56.
On the other hand, it is undeniable that the contested provision will not result in a deterioration in the applicant's position as regards any of the interests alleged. On the contrary, its complaint is based on the contention that if it were not for that provision its position would have been improved, in line with the progress which the Directive at issue seeks to achieve in the liberalization of the rules concerning interregional air traffic.
57.
In the light of the foregoing, the ground for complaint relied on by the applicant may be described as follows:
58.
In its capacity as the owner of the terminal, the applicant essentially regards itself as adversely affected by the fact that it continues to be denied the advantages which would have accrued to the economic value of its property as a result of the increase in air traffic.
59.
The position is very much the same as regards the alleged loss of revenue from fees and taxes. The applicant's complaint in that regard is that its local community is being denied the opportunity of increasing the revenue thus generated.
60.
As regards its interest as an authority involved in the procedure for the approval of interregional air services, the applicant states that under the constitutional agreements reached by the United Kingdom and Gibraltar with the Civil Aviation Authority (CAA) it is able to say whether it supports the setting up of an air service to and from Gibraltar. It is thus necessarily involved in the grant of every approval by the Home State, within the meaning of Article 3(1) of Directive 83/416. The increase in the number of cases in which it can exert its influence is of importance to the applicant in that regard.
61.
The applicant's submissions regarding responsibility for the wellbeing of the inhabitants of Gibraltar are ambiguous. It relies in part on an argument that that right concerns the extension of air links. That viewpoint does not differ in that regard from that relating to its involvement in the procedure for approving interregional air services. It relies in part upon its power, as a public-law body, to represent the interests of its inhabitants. The basis of its assertion of the economic interest of those inhabitants is thus that they should not be deprived of the benefits arising from improved communications and an increase in the volume of traffic.
62.
To what extent does the applicant have a real ground for complaint?
63.
As regards its position as the owner of the terminal, as the fiscal authority and as the representative of the economic interests of the inhabitants, it undeniably has a ground for complaint. Those economic interests may increase in value as a result of the growth in the volume of economic activity in general which the applicant expects to occur in the course of the increase in the volume of traffic, or as a result of the rise in certain, precisely defined revenue. As matters stand at the present stage of the deliberations, however, the possibility cannot be excluded that it would infringe the general principles of Community law if the applicant were to be denied that increase in value.
64.
The position is different, however, as regards the applicant's interest as an authority involved in the procedure for the approval of interregional air services.
65.
There can be no prejudice to the right of consultation granted in that regard — assuming it exists ( 44 ) — merely because the number of cases in which it applies is not increased. That right operates to protect the applicant's interest in influencing the CAA's decision in each individual case. It is not affected by a possible increase in the number of procedures for approval.
66. III.
On that basis, it is first necessary to consider whether the contested measure is of direct concern to the applicant.
67.
The meaning of this requirement is most readily apparent, in my view, from the case of Piraiki-Patraiki. ( 45 ) It was held in that case that the applicant's complaint must arise directly from the contested measure, that is to say, not from some later act of the Community or of the Member State concerned which is based upon a discretionary decision. In derogation from that principle, the existence of scope for the exercise of such discretion will not preclude the applicant from being directly affected, provided there is certainty regarding the way in which such discretion will be exercised and it consequently appears that a decision has already been made in the contested measure regarding the prejudice to the applicant.
68.
In applying that criterion to the present case, it is significant that the provisions of Directive 89/463 regarding airports which are not excluded from its sphere of application impose an obligation on Member States. They are obliged, in relation to regional services to those airports, to incorporate into their domestic law and to apply those liberalization measures which arise from that directive. The provision contested in this case contains one exception to that obligation-applying until such time as the Joint Declaration of 2 December 1987 comes into operation: the Member States are not obliged to take the specified measures in relation to Gibraltar airport. On the other hand, there is no formal prohibition on doing so. Nor are the Member States prohibited from concluding with regard to Gibraltar airport (bilateral) agreements concerning air services which correspond to the directive at issue. The foregoing is apparent from Article 10(1) of Directive 83/416, to which the Commission rightly refers and which provides as follows:
‘The Home State and a State affected may by agreement apply less restrictive provisions whilst respecting the present Directive.’
69.
It follows from those considerations that in several respects the discretion vested in the Member States may preclude the applicant from being directly affected.
70.
One such instance concerns the discretion vested in Member States to apply Directive 89/463 — at least in substance — to Gibraltar airport, notwithstanding the provision contested in this case. The Commission relies on that factor in maintaining that the applicant is not directly concerned.
71.
However, that view must be rejected. The possibility referred to exists only in theory. It must be stated generally that the insertion of the contested provision at the instigation of Spain and the United Kingdom ( 46 ) was accepted in the Council as a compromise to take account of the dispute as to sovereignty over the land on which the airport is situated. Furthermore, the provision has been inserted in a context in which the Member States' powers in the sphere of aviation are curtailed by the Community rules. There is thus no reason to expect that Member States will apply the system laid down by Directive 89/463 to Gibraltar airport. This applies in particular to Spain and the United Kingdom. No submission has been made, moreover, to the effect that the Member States will proceed in that way. Nor can the British aviation authority, in its capacity as the competent authority of the ‘State affected’ in cases involving applications from other States within the meaning of Article 3(3) of Directive 83/416, be expected systematically to authorize air services on a bilateral basis in accordance with the criteria laid down in Directive 89/463. ( 47 ) The fact that the United Kingdom would thereby be at risk of infringing the spirit, if not the letter, of the agreements with Spain means that there is even less justification for any such expectation.
72.
I now turn to the question of the discretion granted to Member States by the actual wording of Directive 83/416, as amended by Directive 89/463. As far as the ‘State affected’ is concerned, it no longer has any appreciable discretion in relation to applications from the Home State, since Article 6(1)(c) of Directive 83/416 in its original version is deleted from the version as amended by Directive 89/463.
73.
On the other hand, the directive does not limit the Home State's discretion to grant to the air carrier concerned an authorization which alone can give rise to an obligation for the State affected to give its approval. ( 48 )
74.
It may be said in that regard, as the Spanish Government points out, that a discretion vested in a third party is interposed between the advantage sought by the applicant and the directive.
75.
In my view this does not mean, however, that the applicant is not directly concerned. The basis of the applicant's complaint is that it is being deprived of the undeniably real chance of an increase in air traffic. The aforementioned discretion vested in Member States in their capacity as Home States is without doubt one of the factors, together with the commercial practices followed by air carriers, which leads to the advantage thus denied to the applicant being no more than a chance. It therefore qualifies the nature of the complaint, but not the fact of its personally affecting the applicant. That effect is directly attributable to the contested provision, and is not dependent on other measures which the applicant could contest. It would indeed be incomprehensible if legal protection against a measure were to be refused merely because of the lack of a precise definition of the advantage claimed by the applicant, the grant of which was denied by that measure. The fact that the advantage was incapable of being specified in concrete terms was precisely the result of the contested refusal. This view is supported by the judgment in the Cofaz case. In that case the applicants, who were competing with Stateaided undertakings, contested the termination by the Commission of the procedure under Article 93(2) of the EEC Treaty. The Court held in that regard:
‘As regards the question whether the Commission's decision to terminate the procedure is of direct concern to the applicants, it is sufficient to observe that the decision has left intact all the effects of the tariff system set up, whilst the procedure sought by the applicants would lead to the adoption of a decision to abolish or amend that system. In those circumstances, it must be held that the contested decision is of direct concern to the applicants’. ( 49 )
76.
Thus, the fact that the consequences of the implementation of the procedure were not certain did not prevent the Court from finding that the applicants were directly concerned. The parallels with the present case are obvious.
77.
The Council and the Commission further submit that the nature of the interests asserted precludes the view that the applicant is directly concerned. They rely in that regard on the hypothetical and indirect nature of the financial advantages expected to follow from the application of Directive 89/463. Furthermore, the alleged right to promote the wellbeing of the inhabitants of Gibraltar cannot be taken into account, since it constitutes merely a bundle of legal positions which could indirectly be adversely affected in the future (according to the Commission) or because it represents an undefined, political position (according to the Council).
78.
That argument cannot be accepted. The requirement that the contested measure be of direct concern to the applicant does not mean that specific types of interests are excluded from the legal protection afforded by the second paragraph of Article 173. It is in fact designed to exclude actions brought against measures which leave the determination of the principle and scope of the interference with the interests relied on — of whatever kind — to subsequent discretionary decisions, which could then form the subject-matter of an action. ( 50 ) As regards the interests asserted by the applicant, however, those negative conditions are not met. Nor is the allegedly ‘indirect’ nature of those interests decisive. In so far as the applicant is thereby alleged to be in reality basing its application on the interests of others (namely those of the inhabitants of Gibraltar), that can only mean that it would then not be individually concerned. ( 51 ) To the extent that the aforementioned submissions presuppose that the disadvantages suffered by the applicant stem from a lacuna in the liberalization of the rules applying to air carriers, they are likewise untenable. Any ground of complaint those carriers may have is of a completely different kind and does not occur as a general rule until a concrete application for approval of an interregional scheduled service to and from Gibraltar is refused. Such refusal may be contested by the air carrier. However, the only judicial means by which the applicant can avert the specific ground of complaint asserted in the present case is by bringing this action. ( 52 )
79.
The Spanish Government further contended that the effect of the contested provision will come to an end as soon as the Joint Declaration comes into operation. Suffice it to say in that regard that the latter circumstance will cause the provision not to come into effect but to cease to be effective. The direct nature of the effect of the contested provision upon the applicant is thus in no way altered ( 53 ).
80.
All in all it must be held that that provision is of direct concern to the applicant.
81. IV.
It is then necessary to examine the objection of inadmissibility based on the ‘nature of the act appealed against’. That objection comprises two parts: first, the characteristic of the contested provision as part of a directive; and secondly, the fact that it is not in the nature of a decision.
82.
Whilst the first part of that objection concerns the form of the legal act, the second relates to its substantive nature.
83.
1. Consideration should first be given to the significance of the fact that the contested provision forms part of a directive.
84.
On its wording, clearly, the second paragraph of Article 173 excludes proceedings brought by individuals against directives. Is this enough, however, for the present action to be dismissed as inadmissible?
85.
The Court has not yet expressed its views on that question. Previous direct actions ( 54 ) brought by individuals against the provisions of directives have been held inadmissible on other grounds, either that the limitation period had expired, ( 55 ) or that the measure complained of did not constitute a decision ( 56 ) or that it was not of individual concern to the applicant. ( 57 )
86.
The question whether the present action should be dismissed as inadmissible by virtue of the terms of the second paragraph of Article 173 depends in my view upon the rationale for the framers of that provision not to specify directives as acts capable of being challenged. Were it to become apparent that that ground does not in the present instance justify a declaration that the action is inadmissible, then the wording of the provision should also not be regarded as a bar to the admissibility of the action. In that case the point in question, in so far as the contested provision is incorporated in the context of a directive, would be a mere characteristic of its form. As the Court has consistently held, however, the Community legislature may not exclude the legal protection envisaged by the second paragraph of Article 173 solely by the choice of the form of an act. ( 58 ) To deny an applicant legal protection merely because the contested provision forms part of a directive, and thereby to ignore the fact that the substantive reason for the omission of any reference to directives in the second paragraph of Article 173 may perhaps not apply in an individual case, would moreover be inconsistent with the duty of the Court as defined in Article 164 of the Treaty. ( 59 )
87.
Consideration needs therefore to be given, first of all, to the reason why the framers of the Treaty did not include, in the second paragraph of Article 173, directives as acts capable of being challenged. To that end, that provision must be considered in the light of Article 189 of the Treaty, in the third paragraph of which directives as legal acts are described in the following manner:
‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.’
88.
According to that description, the provisions of a directive allow for a discretion relating specifically to its transposition by its addressees — the Member States. Therein lies, in accordance with the scheme of Article 189, the difference between directives and decisions addressed to the Member States. That appears to me to be the only explanation why decisions addressed to Member States fall within the ambit of acts capable of being challenged within the meaning of the second paragraph of Article 173 but directives do not. As regards the provisions of directives, the framers of the Treaty appear to have assumed that such provisions, because of the specific discretion allowed to Member States in relation to their transposition, are not of direct concern to individuals, even where they serve to impose a burden on economic operators.
89.
However, that premise proves to be incorrect where there exists no such discretion as regards transposition.
90.
That is the position, for example, where the provision of the directive concerned lays down a prohibition which, as regards its content and the group of persons potentially affected by it, is so precise that it is incapable of being rendered more specific by the Member States. The implementing measures taken by the Member States would, as regards the principle underlying them and their essential details, constitute merely the necessary consequence of the Community provision.
91.
The Court was concerned with such a situation in Case 160/88. ( 60 ) In that case, manufacturers of hormonal preparations used in the rearing of animals (and an association of such manufacturers) had applied pursuant to the second paragraph of Article 173 for a declaration that provisions in a directive prohibiting the use of some of the preparations manufactured by them were void. That application was held to be inadmissible, since the contested provisions were of a normative nature and thus could not be regarded as a ‘decision’ (according to the order of the President of the Court in the proceedings for interim measures) or because the prohibitions at issue were not of individual concern to the applicants (according to the Court in the proceedings on the main application).
92.
The Court thus avoided declaring the action inadmissible solely on the ground that the contested provisions were contained in a directive. It is moreover clear from the order made by the President in the proceedings for interim measures that the causal relationship between the contested measure and the applicant's ground of complaint was of a direct nature. No other function was attributed to the Member States' implementing measures than to transpose the clear contents of the provisions of the directive to the economic operators concerned. According to paragraph 28 of the order, the provisions of the directive apply
‘by way of national legislation adopted by the Member States in order to comply with the directive,... to objectively determined situations and produce legal effects with regard to categories of persons envisaged in a general and abstract manner...’.
93.
As far as the present case is concerned, it cannot be treated any differently, as regards the point in question, from the aforementioned Hormone case. That case concerned a prohibition falling within the scope of application of the directive which was sufficiently precise to exclude any discretion regarding its transposition by the Member States. In the present case, Gibraltar airport is excluded from the outset from the scope of application of the directive. Logically, therefore, there can be no discretion as to the transposition of that directive in relation to that airport. As is apparent from my earlier comments, ( 61 ) the discretion vested in the Member States in relation to air services to and from that airport is that retained by them generally in respect of air traffic in the absence of any Community provisions, and not the specific discretion allowed to them for the purposes of the transposition of the directive.
94.
Those considerations suffice in themselves to enable the contested provision to be treated as if it were contained in a decision addressed to the Member States. ( 62 )
95.
For the sake of completeness, however, it should be pointed out that even the discretion vested in the Member States independently of the directive has only a theoretical influence on the rules applying to Gibraltar airport. ( 63 )
96.
In view of all the foregoing, the fact that the contested provision is contained in a directive does not in itself render the application inadmissible.
97.
2. The second part of the present objection of inadmissibility is based, as stated above, on the fact that the contested provision is not in the nature of a decision but is rather a rule of general application. As I explained at length in my Opinion in the case of Codorniu, ( 64 ) that fact in itself is also not enough for an application to be declared inadmissible pursuant to the second paragraph of Article 173. The requirement that there be a ‘decision’ is in fact subsumed in the broader requirement of the aforementioned provision that the contested measure must be of individual concern to the applicant. ( 65 ) I will set out my views on that requirement in the following section.
98.
V. 1. In answering the question whether the contested provision is of individual concern to the applicant, reference must be made first to the general meaning of that characteristic. As is well known, a measure is of individual concern to persons only if the decision ‘affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed’. ( 66 )
99.
That characteristic is thus intended to ensure that the position of an applicant in relation to the contested measure is comparable to that of an addressee. For that purpose it is not enough that the applicant is a member of a self-contained category of persons concerned. ( 67 ) What is required is a specific link between the situation (in the broadest sense of the word) of the applicant and the contested measure, and that specific link can be established by various circumstances. ( 68 )
100.
However, in applying to the present case the principles developed in that regard in the case-law of the Court, two particularities of this case must be borne in mind. The first is that the applicant, as previously indicated, ( 69 ) is not complaining of interference with an existing position, but is criticizing the Council for the fact that the contested provision continues to deprive it of certain advantages. The second particularity relates to the interests asserted by the applicant, which are connected with the applicant's various functions. The applicant relies primarily on its capacity as the owner of the terminal, but asserts in addition (other) ‘pecuniary’ interests connected with its capacity as Gibraltar's fiscal authority. ( 70 ) As regards the applicant's position as an authority taking part in the procedure for the approval of interregional air services, on the other hand, there is not even any ground of complaint, with the result that that interest does not need to be examined further in this connection. ( 71 ) In so far as the applicant relies, on the basis of that position, upon its competence to look after the wellbeing of the inhabitants of Gibraltar, that also does not require further examination. ( 72 ) On the other hand, regard must be had, in the examination carried out below, to its alleged authority to represent the interests of its inhabitants.
101.
2. (a) Let us first consider the interests which the applicant founds on its capacity as the owner of the terminal. For the sake of completeness, it should be stated in that regard that those interests are connected with the procurement of revenue from the leasing of the facilities of that terminal; at the time when the proceedings were brought, the lessor was Gibraltar Airport Services Limited (GASL), in which the applicant held a 50% interest. This is one of the positions with regard to which the applicant's complaint is based on the fact that it has been deprived of the opportunity of increasing its revenue. ( 73 )
102.
Applying the principles set out above, the applicant cannot be regarded as individually concerned merely because Gibraltar airport has only one terminal, of which it is the owner: membership of a self-contained group of affected persons is just one of the conditions which an applicant must fulfil in order to be regarded as individually concerned. The question is rather whether there exists, in relation to the applicant's aforementioned interest in increasing revenue, any particular relationship between its situation and the contested measure, such that the applicant's position is analogous to that of an addressee of that measure.
103.
In my view the answer to that question must be in the negative.
104.
The circumstances which may give rise to such a special relationship include, first and foremost, the causal connection between the situation of an applicant and that of the contested measure. ( 74 ) The judgments inTöpfer ( 75 ) and Bock, ( 76 ) upon which the applicant relies in the present context, fall into that category. The Töpfer case concerned the retroactive authorization of a Member State to take protective measures warranting the refusal of import licences which had already been applied for by the applicants. There thus existed a causal link between the contested measure and the applicants' situation as operators which had applied for the licences. The same applied in the case of Bock, in which the Member State concerned was permitted to exclude from Community treatment certain goods originating from the People's Republic of China and in free circulation in the Benelux countries. That decision was made with specific regard to an application by the applicant for an import licence. ( 77 ) However, in this case the precondition of a causal connection as thus defined is not met. The contested measure has nothing to do with the particular situation of the economic operators concerned in the commercial exploitation of terminals. It is immaterial in this respect whether reference is made to the aims of the directive as a whole or to the specific objective underlying the contested provision itself.
105.
It must be stated in that regard that Directive 83/416 pursues two economic aims. The first of these is apparent from the first recital in the preamble to that directive, which states:
‘a Community procedure for authorizing scheduled interregional air services between Member States, for the transport of passengers only or in combination with mail and/or cargo between certain Community airports, will give air carriers greater scope to develop markets and could thus contribute to the evolution of the intra-Community network’.
106.
Similarly, the fourth recital in the preamble to Directive 89/463 states:
‘experience has shown that only a few services have been authorized in accordance with the Directive and that it would therefore be desirable to give air carriers greater scope to develop markets and thereby contribute to the evolution of the intra-Community network’.
107.
It was thus primarily the position of the air carriers that was decisive in the formulation of the original legal act and of the amending directive in question here. However, the applicant does not even belong to that category of economic operator (a category which is moreover open), whose situation was a determining factor for the legislature.
108.
Similar considerations apply as regards the regional-policy aims of Directive 83/416. The fourth recital in the preamble thereto states:
‘it is necessary to develop internal Community air traffic on regional routes in order to contribute to the development of the regions within the European Community’.
109.
There is likewise nothing in those aims to demonstrate that the position of owners of civil terminals was of significance as regards the rules laid down by the directive. Those aims are of concern to all economic operators in disadvantaged regions which might benefit from improved connections to their regions.
110.
Finally, as far the contested provision itself is concerned, it is based, as is apparent from the eighth recital in the preamble to Directive 89/463, on the factors forming the subject-matter of the Joint Declaration of 2 December 1987. That declaration is itself the consequence of the difference of opinion between Spain and the United Kingdom regarding the land on which the airport is situated and the difficulties which ensue in the Council's view in relation to the application of the directive to Gibraltar airport; the declaration is not based, however, upon the applicant's situation as the owner of the terminal.
111.
Nor is that conclusion in any way affected by the fact that the Joint Declaration envisages the construction of another terminal by the Spanish authorities. As is apparent from the Joint Declaration, the purpose of that measure is to enable the Spanish authorities to carry out directly customs and immigration controls in respect of passengers travelling to and from places lying to the north of the border fence. It thus falls within the framework of the difference of opinion regarding international law between the two Member States concerned and has no substantive connection with the economic interests of the applicant as the owner of the existing terminal.
112.
For all those reasons, it cannot be said that the position of the applicant —whether on its own or as a member of a closed category of persons — was decisive for the contested provision. There can thus be no justification from that point of view for regarding the applicant as individually concerned.
113.
However, the situation of an applicant as a person individually concerned may result from other factors creating a special relationship between that applicant and the contested measure. One such decisive factor would be if an applicant was protected by particular terms in the legal basis for the contested measure. That concept is a very familiar one in the Community competition rules, ( 78 ) but has also been applied in cases relating to the common agricultural policy. ( 79 ) It is of particular significance in situations in which, as in the present case, the applicant, by means of his action for annulment, is seeking to better his position and not to avert the worsening of a position (protected by fundamental rights). A protective provision in the context of the legal basis may legitimate that interest and thus create a special relationship between the applicant's situation and the contested measure.
114.
However, that precondition is not fulfilled in the present case either. According to the first citation in the preamble thereto, the directive at issue is based directly upon Article 84(2) of the Treaty. That provision empowers the Council to enact ‘appropriate provisions for sea and air transport’. It does not provide for any particular protection for individual groups of economic operators.
115.
Lastly, the applicant cannot be regarded as individually concerned on the basis of the principles laid down in the Extramet ( 80 ) judgment either. That judgment related to a case in which an antidumping duty was levied on products imported and processed by the applicant. The Court held in that regard (at paragraph 17):
‘The applicant has established the existence of a set of factors constituting such a situation which is peculiar to the applicant and which differentiates it, as regards the measure in question, from all other traders. The applicant is the largest importer of the product forming the subject-matter of the antidumping measure and, at the same time, the end-user of the product. In addition, its business activities depend to a very large extent on those imports and are seriously affected by the contested regulation in view of the limited number of manufacturers of the product concerned and of the difficulties which it encounters in obtaining supplies from the sole Community producer, which, moreover, is its main competitor for the processed product.’
116.
That case involved, therefore, a situation in which the applicant wished to avert interference with its existing position, rather than an application aimed at improving that position, as in the present case. ( 81 ) In my view, the principles laid down in Extramet are applicable in a case such as this only if the applicant can substantiate his contention that he has a legally protected interest in the improvement of his position. If, despite that protection, he has been denied that benefit, that may, depending on the circumstances, be equated with an interference with an existing position and justify the application of the ‘impact’ criterion set out in the Extramet judgment. ( 82 )
117.
Such protection may arise by reason of the fact that an applicant belongs to a precisely defined group of economic operators which are intended to benefit from Community treatment (in the case of Community aid, for example). In those circumstances, the legal protection afforded to the interest relied on stems from the principle of equal treatment. In order for the principles laid down in Extramet to apply, it is not necessary in that context for the group of economic operators concerned to be finite, since the individualization of the applicant within that group will, if appropriate, emerge from the principles laid down in that judgment itself.
118.
In the present case, it is at most the air carriers that might be regarded as such a group of economic operators, ( 83 ) but they do not include the applicant.
119.
Nor does the legal basis applied afford any specific protection for the interests asserted by the applicant in its capacity as the owner of the terminal. ( 84 )
120.
The applicant has not pointed to anything else from which it might derive legal protection for its interests.
121.
Consequently, it cannot be regarded as individually concerned in so far as it seeks to rely on its position as owner of the terminal.
122.
(b) The applicant further relies on its capacity as an agency levying various fees and taxes (taxes on aircraft fuel, customs duty on freight coming into Gibraltar, tax on sales in the duty-free shop, airport departure taxes charged to passengers, storage charges on freight stored in the airport, and revenue from taxes levied on all economic operators carrying on business at the airport, which fall in that regard within the jurisdiction of the applicant).
123.
Essentially the same considerations apply in that regard as to the question whether the applicant is individually concerned in its capacity as the owner of the terminal. The further point should be made that the applicant cannot, as regards taxes levied in connection with the economic activities of third parties, the increased volume of which will generate greater tax revenue, be placed in a better position than the economic operators carrying on those activities. That consideration applies to the taxes on aircraft fuel, on sales in the duty-free shop, and on storage charges and to the taxes levied on economic operators carrying on business in the airport. In that regard, no distinction can be drawn between the applicant's position as a fiscal authority and as the owner of the terminal.
124.
According to the particulars given by the applicant, the departure taxes appear to constitute a payment made by passengers in return for the use of the airport facilities being expanded and devleoped by GASL, the revenue from which is shared between GASL and the applicant. In that regard, similarly, the applicant cannot be treated differently from any economic operator carrying on business in the airport.
125.
It is true that the customs duty charged on freight brought into Gibraltar appears to be linked not directly to any economic activity carried on by third parties but to the physical entry of goods onto Gibraltar territory. However, the applicant's position in that regard cannot be compared to that of an addressee of the measure either. Comparison would be possible with other economic operators having an interest in an increase in imports of goods into Gibraltar, such as transport companies.
126.
All those conclusions are ultimately in accordance with the submissions of the applicant, which describes its interest as the fiscal authority, like the interest which it has as the owner of the terminal, as a ‘pecuniary’ interest.
127.
(c) It remains to consider the interest of the applicant in looking after the wellbeing of the inhabitants of Gibraltar. In the present context, all that remains to be determined in that regard is whether the applicant is individually concerned in so far as it is relying on the economic interests of the inhabitants. It should further be stated in that connection that the applicant, according to my understanding of its submissions, is not pleading any interference with its competence in the sphere of economic life in Gibraltar. It is moreover impossible to see what such interference might consist of. Furthermore, the applicant has not advanced any argument to the effect that the substance of such competence in practice would be in any way diminished as a result of the economic life of Gibraltar being brought to a standstill because air traffic would not be expanded to the extent previously anticipated.
128.
In support of its view that it is empowered to represent the interests of the inhabitants of Gibraltar, the applicant relies upon the Court's decision in the case of Chris International Foods. ( 85 )
129.
That case concerned an application for annulment and damages by an economic operator in relation to a decision by the Commission authorizing a Member State, pursuant to Article 115 of the EEC Treaty, not to apply Community treatment to bananas originating in certain dollar-area countries which were in free circulation in other Member States. Dominica, as one of the countries whose production appeared to be favoured by that measure, had applied to intervene in the action pursuant to Article 37 of the Statute of the Court of Justice of the EEC. At the end of its order the Court held, in that regard:
‘The Court is of the opinion that Dominica is a person which has established a sufficient interest in the result of the case, within the meaning of the second paragraph of Article 37 of the Statute of the Court, and that it must therefore be allowed to intervene.’
130.
In my view, it does not follow from that that the applicant in the present instance can be regarded as individually concerned. That order of the Court in fact demonstrates only two things:
—
the interest of the banana producers of Dominica could be relied on for the purpose of intervention in the action by that State;
—
that interest did constitute an interest within the meaning of the second paragraph of Article 37 of the Statute.
131.
As regards the first aspect, there might indeed be grounds for considering regarding nonmember countries and other communities, by virtue of their duty to promote the wellbeing of their inhabitants, as being entitled, in individual cases, to assert not just their own interests but also those of economic operators carrying on business within their territory — inter alia for the purposes of the second paragraph of Article 173. From that standpoint, such an applicant would then be treated as though the interests asserted were based on its own rights. However, even if such a possibility were recognized, an applicant would in that context have a right of action only to the extent that the economic operators upon whose interests it relies themselves have a right of action.
132.
Consequently, such an applicant, in so far as it does not assert specific interests of its own, must establish that the economic operators in question, or at least some of them, are themselves individually concerned. ( 86 )
133.
That brings us to the second of the two aspects arising from the order in Chris International Foods. It should be noted that an intervener has only to establish an interest in the outcome of the case. As is evidenced by the very liberal practice of the Court, with which the aforementioned order is wholly consistent, the requirements which apply in this context are far less onerous than those applying to establishing that a person is individually concerned, ( 87 ) perhaps precisely because the preconditions set out in the second paragraph of Article 173 for a direct action to be brought by an individual are very narrowly worded.
134.
Consequently, it does not follow from the order cited by the applicant that it has a right of action in the present case. In order for it to have such right, it would have to show that the economic operators which it represents, or at least some of them, are individually concerned. However, there is nothing to indicate that this is the case.
135. VI.
It follows, therefore, that this application does not fulfil the requirements of the second paragraph of Article 173, since the contested provision is not of individual concern to the applicant. That outcome does not, in my view, amount to a denial of justice and there is no need to answer the question raised in the oral procedure regarding the possibility of bringing proceedings in the national courts. It is certainly undeniable that the applicant, particularly in its capacity as the owner of the terminal, has a strong interest in the extension of air links to Gibraltar. However, the effect of the measure is not such as to constitute an interference with its existing position; nor was it found that the improvement it seeks in its position enjoys any specific legal protection. It cannot therefore be maintained that there has been any interference with a right vested in the applicant and that the applicant has been denied protection for that right.
C — Conclusion
136.
On those grounds, I propose that:
—
the application should be dismissed as inadmissible;
—
the applicant should be ordered, under Article 69(2) of the Rules of Procedure, to pay the costs, apart from those of the interveners, which should be borne by them pursuant to Article 69(4).
( *1 ) Original language: German.
( 1 ) OJ 1989 L 226, p. 14.
( 2 ) 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).
( 3 ) This term means, as is clearly indicated by the text of the provision, connections which involve changing aircraft.
( 4 ) 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).
( 5 ) Sec the fourth recital in the preamble to Directive 89/463.
( 6 ) 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).
( 7 ) 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.
( 8 ) Annex 3 to the application.
( 9 ) Second paragraph of the preamble.
( 10 ) Third paragraph of the preamble.
( 11 ) 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.
( 12 ) 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).
( 13 ) Council Regulation of 23 July 1992 on access for Community air carriers to intra-Community air routes (OJ 1992 L 240, p. 8).
( 14 ) Case C-336/90 [1993] ECR I-3961.
( 15 ) Case C-397/92 [1993] ECR I-3971.
( 16 ) 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.
( 17 ) Case C-128/91 [1993] ECR I-3981.
( 18 ) 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).
( 19 ) See also paragraphs 25 et seq., below.
( 20 ) Halsbury's Laws of England, 4th edition, Volume 6, paragraph 803.
( 21 ) 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).
( 22 ) 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.
( 23 ) Sec pages 6 to 8 and 11 of its pleading.
( 24 ) Sec page 36 of its pleading.
( 25 ) See page 25, paragraphs IV.4 and 5.
( 26 ) 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.
( 27 ) 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.
( 28 ) Case 18/74 Syndical Génériti du Personnel v Commission [1974] ECR 933.
( 29 ) Paragraph 7 of the judgment; emphasis added.
( 30 ) Sec the Opinion of Advocate General Mancini in Case 282/85 DEF1 v Commission [1986] ECR 2469, at page 2471. paragraph 2.
( 31 ) See paragraph 33 above.
( 32 ) 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’.
( 33 ) See paragraph 5.5 of its observations on the objection of inadmissibility.
( 34 ) See also paragraph 7 of its reply to the questions put by the Court.
( 35 ) See paragraph 38 of its reply to the questions put by the Court.
( 36 ) 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).
( 37 ) Sec pages 6 and 7 of the Joint Opinion (see footnote 26).
( 38 ) See paragraph II.8 on page 21 of the applicant's reply to the objection of inadmissibility.
( 39 ) Under the heading ‘Public Services’.
( 40 ) Under the heading ‘Revenue-Contributing Services’.
( 41 ) 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.
( 42 ) See my Opinion in Joined Cases 62/87 and 72/87 Exécutif régional wallon v Commission [1988] ECR 1573 (paragraph 13 on p. 1582).
( 43 ) See the last footnote, and also the judgment in Case 222/83 Municipality of Dtfferdange v Commission [1984] ECR 2889.
( 44 ) 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.
( 45 ) Case 11/82 Piraiki-Patraiki v Commission [1985] ECR 207.
( 46 ) Sec Annex 8 at the end of the Spanish Government's pleading.
( 47 ) 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.
( 48 ) See the third recital in the preamble to Directive 83/416.
( 49 ) Case 169/84 Cofaz v Commission [1986] ECR 391, paragraph 30; emphasis added.
( 50 ) 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.
( 51 ) Sec paragraph 41 above.
( 52 ) In the discussions on this point at the hearing, none of the parties was able to point to a specific domestic legal remedy.
( 53 ) 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.).
( 54 ) 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).
( 55 ) Order of the Court in Case 352/87 Farzoo and Kortmann v Commission [1988] ECR 2281.
( 56 ) 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.
( 57 ) 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.
( 58 ) 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.
( 59 ) See the judgment in Case C-70/88 Parliament v Council (‘Chernobyl’) [1990] ECR I-2041, paragraph 26.
( 60 ) See footnotes 56 and 57.
( 61 ) See paragraphs 68, 69 and 70 above.
( 62 ) 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).
( 63 ) See paragraph 71 above.
( 64 ) Opinion of 27 October 1992 in Case C-309/89 Codorniu v Council, not yet published in the ECR, paragraphs 22 to 37.
( 65 ) 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.
( 66 ) Case 25/62 Plmmtmn v Commission [1963] ECR 95, at p. 107.
( 67 ) Case 123/77 UNICME v Council [1978] ECR 845, paragraph 16.
( 68 ) See in particular my Opinion in the case of Codorniu, cited above, paragraph 39 et seq.
( 69 ) Paragraphs 55 and 56 above.
( 70 ) See, for further details, paragraph 122 below.
( 71 ) See paragraphs 64 and 65 above.
( 72 ) See paragraphs 61, 64 and 65 above.
( 73 ) See paragraphs 58 and 59 above.
( 74 ) 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.
( 75 ) Joined Cases 106/63 and 107/63 Töpfer v Commission [1965] ECR 547.
( 76 ) Case 62/70 Bock v Commission [1971] ECR 897.
( 77 ) See section I(2) of the Issues of Fact.
( 78 ) 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.
( 79 ) See the judgment in Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, and the Backl judgment (footnote 65 above).
( 80 ) Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501.
( 81 ) 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).
( 82 ) 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.
( 83 ) See paragraphs 105 to 107 above.
( 84 ) See paragraph 114 above.
( 85 ) Order in Joined Cases 91/82 and 200/82 Chris International Foods v Commission [1983] ECR 417.
( 86 ) Case 282/85 DEFI v Commission [1986] ECR 2469, paragraph 16.
( 87 ) 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.
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