Action brought on 16 February 2004 by the Swiss Confederation against the Commission of the European Communities

(Case C-70/04)

(2004/C 94/48)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 16 February 2004 by the Swiss Confederation, represented by Simon Hirsbrunner and Ulrich Soltész, Rechtsanwälte, Brussels (Belgium).

The applicant claims that the Court should:

Pleas in law and main arguments

The contested decision of the European Commission should be annulled on the following grounds:

The Commission errs by proceeding from the assumption in its decision of 5 December 2003 that the Agreement on air transport which was signed by the European Community and the Swiss Confederation on 21 June 1999 simply provides for an exchange of traffic rights. The Agreement in fact extends the internal air traffic market to the Swiss Confederation with the result that the airlines of the Swiss Confederation and the European Union have equal rights of access to the market. That also means in particular that the Swiss Confederation and Swiss companies falling within the scope of the Agreement can rely on the freedom to provide services in the air traffic sector.

The Commission was wrong to deny infringement of the freedom to provide services. Contrary to the Commission's decision, the 213th Regulation for the implementation of the Air Traffic Regulations of the Federal Republic of Germany affects the freedom of Swiss International Air Lines (hereinafter also ‘SWISS’) to provide services, because it hinders the operation of flights to and from Zurich.

The Commission was wrong to deny that there was discrimination against Swiss companies was caused by the 213th Regulation. The Swiss airline SWISS is disadvantaged in competition because it is subject to stricter limitations on the use of its hub at Zurich than its direct competitor Lufthansa suffers in using its own hubs at Frankfurt-am-Main and Munich. SWISS is also affected more severely than the other airlines flying to Zurich, since it is the ‘home carrier’ and the operator of the Zurich air traffic hub and as such is particularly vulnerable to limitations on the operation of Zurich airport. In addition, the German measures treat the Zurich international airport operated by UNIQUE Flughafen Zürich AG less favourably than similar airports in Germany, to which no even roughly similarly drastic flight limitations apply or may be applied.

Contrary to the Commission's opinion, those limitations must be measured against the principle of proportionality. That principle is applicable in connection with the Air Transport Agreement. It is infringed by the German 213th Regulation. That regulation is not based on any compelling ground of general interest and the limitations it contains are neither necessary nor appropriate. The Federal Republic has at its disposal, contrary to the Commission's view, alternative means by which to achieve its aims.

The Commission was wrong to deny infringement of the duty of honest cooperation.

Furthermore, in the proceedings the Commission has breached the right to a fair hearing. The Commission began with preconceived opinions and did not examine the arguments of the Swiss Confederation in an unprejudiced manner or clarify the facts of the matter. As a result the requirement for fairness was breached. The reasons given for the decision do not satisfy the requirements laid down in the case-law.

(1)  OJ 2004 L 4, p. 13.