Court of Justice rejects Switzerland’s appeal concerning Zurich airport

After an Odyssey of nearly 10 years, the legal proceedings of Switzerland against German restrictions on flights to and from Zurich airport have come to an end:  The CJEU, in its judgement delivered on 7 March 2013 (Case C‑547/10 P), has rejected Switzerland’s appeal against the judgment of the General Court of 9 September 2010 (Case T‑319/05), by which the General Court had rejected Switzerland‘s action for annulment against Commission Decision 2004/12/EC of 5 December 2003 (OJ 2004 L 4, p. 13), thus allowing Germany to continue to apply unilateral restrictions on flights to and from Zurich airport over German territory.

Beyond its undoubtedly grave consequences for the airport of Zurich and all other affected stakeholders, the case was also particularly interesting from the point of view of Swiss-EU relations in general: As Advocate General Jääskinen pointed out in his Opinion delivered on 13 September 2012, this is the first time Switzerland initiated an action for annulment before the EU judiciary. Unfortunately, like the General Court before, the CJEU did not take the opportunity to assess the legal consequences of the Swiss-EU Agreements on the procedural status of Switzerland before the CJEU.

As is commonly known, Switzerland is not a Member State of the EU. Its policy towards the EU currently consists in finding solutions for matters of common interest by concluding Agreements in specific areas. A number of so-called ‘Bilateral Agreements’ have thus been concluded between Switzerland and the EU. One of them is the Swiss-EU Air Transport Agreement of 21 June 1999 (OJ 2002 L 114, p. 73). Like most of the other Bilateral Agreements, this Agreement provides that the relevant EU law shall apply within its scope of application (Article 2 of the Agreement). Unlike the other Agreements, however, the Air Transport Agreement also provides for the competence of the EU institutions in supervising the application of the Agreement and the relevant EU law in some areas. Specifically, Article 20 of the Agreement provides that “all questions concerning the validity of decisions of the institutions of the Community taken on the basis of their competences under this Agreement shall be of the exclusive competence of the Court of Justice of the European Communities.”

The contested German measures were to be found in an ‘Implementing Regulation’ (‘213. DVO’) adopted in early 2003 and later modified in order to prevent overflight over German territory below a certain altitude at specified times. The effect of the German ‘Implementing Regulation’ was to preclude the airport of Zurich from using its main landing approaches during these periods. Switzerland therefore contested the German measures, first before the European Commission and then before the CJEU, relying on the Air Transport Agreement and on the ‘Access Regulation’ of the EU (Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes (OJ 1992 L 240, p. 8), now replaced by Regulation (EC) No 1008/2008).

Since the (negative) Commission decision was addressed only to Germany, the question had arisen whether Switzerland – being a non-member State – could avail itself of the Agreement in order to establish locus standi under the same conditions as the EU Member States (i.e. under Article 230 Paragraph 2, rather than 4, TFEU). While in its Order of 14 July 2005 in Case C‑70/04 transferring the case to the General Court, the Court had expressly mentioned this possibility (albeit without giving its view on it), the present judgement entirely omits any reference to the admissibility of the Swiss appeal. This is all the more surprising because the Advocate General considered the reasoning of the General Court for not ruling on the admissibility of the case worth 14 paragraphs of general reflections on the need to consider locus standi. The General Court had simply stated, at paragraph 55 of its judgment, that, ‘given the circumstances of the present case, it is not necessary to rule on the admissibility of the present action since it must in any event be dismissed as unfounded’.

What does the silence of the CJEU on this point mean? Is the Court reluctant to take a position in a matter that is currently under discussion between Switzerland and the EU, i.e. the so-called ‘institutional issues’ relating to the Swiss-EU Agreements? The Council of the EU has only in December 2012 urged for “international mechanisms for surveillance and judicial control” of the Swiss-EU Agreements (Council conclusions on EU relations with EFTA countries of 20 December 2012, para. 33). Or is the Court’s silence – on the contrary – an indication that the Court considers that Switzerland’s locus standi is naturally given in cases concerning the interpretation of the Swiss-EU Agreements?

Whatever the reasons for this somewhat surprising silence on admissibility, the CJEU did, however, clarify another question of high interest from the Swiss perspective, namely what it considers to be the material scope of application of the Agreement: Drawing from its own case-law concerning the Swiss-EU Agreement on the Free Movement of Persons, it stated that – given that Switzerland is not a Member State of the EU – the interpretation given to provisions of the Internal Market cannot be transposed automatically to the Agreement, and that therefore neither the principle of the freedom to provide services in the area of air transportation, nor the principle of proportionality, apply in the scope of application of the Agreement (paras. 78 to 83). The CJEU thus considers that the rights of the operator of the airport and of persons living near the airport did not need to be taken into account when assessing the German measures (para. 88). On the whole, the Court also followed the application of the ‘Access Regulation’ as made by the Commission and the General Court. In particular, it does not view the German restrictions as discriminatory. The German ‘Implementing Regulation’ was thus, in the Court’s view, compatible with the Agreement and the ‘Access Regulation’.

Ironically enough, the judgement of the CJEU was published almost at the same time as the small chamber of the Swiss Federal Parliament (Ständerat) approved a Draft Agreement with Germany intended to resolve the decades-long noise issue around Zurich airport – although the ratification procedure was already blocked in Germany in November 2012. It is thus unlikely that the judgement of the CJEU marks the end of the Odyssey for a suitable solution concerning Zurich airport.

Disclaimer: The author has worked in different Swiss public administration services that were involved, inter alia, in the case at hand. The present post only represents the private opinion of the author.

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