Case C‑205/14

European Commission

v

Portuguese Republic

‛Failure of a Member State to fulfil obligations — Air transport — Regulation (EEC) No 95/93 — Allocation of slots at European Union airports — Article 4(2) — Independence of the coordinator — Concept of ‘interested party’ — Airport managing body — Functional separation — System of financing’

Summary — Judgment of the Court (Fifth Chamber), 2 June 2016

1. Transport — Air transport — Regulation No 95/93 — Allocation of slots at European Union airports — Article 4(2) — Independence of the coordinator — Requirement of functional separation from any interested party — Scope

   (Council Regulation No 95/93, Arts 4(2)(b) and ( c), 4(8) and 5(1))

2. Transport — Air transport — Regulation No 95/93 — Allocation of slots at European Union airports — Article 4(2) — Obligation of Member States to ensure the independence of the coordinator — Requirement of functional separation from any interested party and for a system of financing the coordinator’s activities that is such as to guarantee the coordinator’s independent status — Absence — Failure to fulfil obligations

   (Council Regulation No 95/93, Art. 4(2)(b) and (c))

1.  The requirement of functional separation of the coordinator responsible for the allocation of slots at European Union airports, the purpose of which is to guarantee the coordinator’s independent status in relation to any interested party for the purposes of Article 4(2)(b) and (c) of Regulation No 95/93 on common rules for the allocation of slots at Community airports, as amended by Regulation No 545/2009, implies that the coordinator should allocate the slots to persons requesting them in a neutral, non-discriminatory and transparent way.

   Since the first sentence of Article 4(2)(b) of Regulation No 95/93 seeks to preclude any risk of the coordinator not carrying out its tasks in an independent manner, ‘interested party’ must be understood as meaning any entity the interests of which might be affected by the allocation of slots, which is the case with regard to the managing bodies of airports. The fact that the managing body of an airport may have an interest in the slots being allocated to a certain air carrier confirms that finding, even if that managing body has no direct or indirect shareholding in the capital of that air carrier, since such an interest may arise out of other circumstances, such as out of contracts for the lease of space between an air carrier and the managing body or out of the latter’s wish for the airport in question to become a hub for a certain air carrier.

   (see paras 33, 37, 39-44)

2.  A Member State which fails to guarantee that the coordinator for the allocation of slots is independent by not ensuring, first, that that coordinator is functionally separate from any single interested party and, secondly, by not ensuring that the system of financing the coordinator’s activities is such as to guarantee the coordinator’s independent status, fails to fulfil its obligations under Article 4(2) of Regulation No 95/93 on common rules for the allocation of slots at Community airports, as amended by Regulation No 545/2009.

   In that regard, first, the legislation of that Member State does not satisfy the requirement that the coordinator must be independent if it is vague and abstract in nature and if it relies solely on the self-limitation of the coordinator, without imposing on it an appropriate and specific framework.

   Secondly, where the national coordinator for the allocation of slots is also the airport managing body, the division within that coordinator which is responsible for the allocation of slots must have its own accounts, budget and financial resources in order to ensure that it carries out its functions as coordinator in accordance with that regulation, without any influence from the airport managing body. A system which does not provide for any mechanism for financing such a division by means of own resources, that division being entirely financed by the airport managing body, and in which the adoption of the coordinator’s operational budget and annual accounts falls within the exclusive competence of the managing body’s board of directors does not satisfy those requirements. The mere fact that the division responsible for the allocation of slots constitutes a specific cost centre is not capable of affecting that conclusion.

   (see paras 47, 49, 54-58, operative part 1)