Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Fifth Chamber)

14 July 1998 (1)

(Measures having equivalent effect - Directives on noise emissions from aircraft - Stricter domestic limits - Barrier to the importation of an aircraft - Environmental protection)

In Case C-389/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Bundesverwaltungsgericht for a preliminary ruling in the proceedings pending before that court between

Aher-Waggon GmbH

and

Federal Republic of Germany

on the interpretation of Article 30 of the EC Treaty,

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet (Rapporteur), J.C. Moitinho de Almeida, P. Jann and L. Sevón, Judges,

Advocate General: G. Cosmas,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Aher-Waggon GmbH, by Michael and Birgit Schroeder, Rechtsanwälte, Cologne,

- the German Government, by Ernst Röder, Ministerialrat at the Federal Ministry of Economic Affairs, acting as Agent,

- the Danish Government, by Peter Biering, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

- the Commission of the European Communities, by Claudia Schmidt, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Aher-Waggon GmbH and the Commission at the hearing on 4 December 1997,

after hearing the Opinion of the Advocate General at the sitting on 15 January 1998,

gives the following

Judgment

1. By order of 25 September 1996, received at the Court on 29 November 1996, the Bundesverwaltungsgericht (Federal Administrative Court) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 30 of the Treaty.

2. That question was raised in proceedings between Aher-Waggon GmbH ('Aher-Waggon') and the Luftfahrt-Bundesamt (Federal Office of Aviation; 'the Bundesamt') following the refusal by the Bundesamt to grant Aher-Waggon registration for a propeller-driven aircraft previously registered in Denmark.

3. In order to combat disturbance from air-traffic noise, the Council adopted Directive 80/51/EEC of 20 December 1979 on the limitation of noise emissions from subsonic aircraft (OJ 1980 L 18, p. 26), as amended by Council Directive 83/206/EEC of 21 April 1983 (OJ 1983 L 117, p. 15) ('the Directive'). The Directive sets limits based on the relevant standards adopted by the International Civil Aviation

   Organisation. Those standards are set out in Annex 16/5 to the Convention on International Civil Aviation, signed in Chicago in 1944 ('the Convention').

4. The relevant provision of the Directive is Article 3(1), which states:

   'Each Member State shall ensure that all civil propeller-driven aeroplanes with a maximum certificated take-off mass not exceeding 5 700 kg and all civil subsonic jet aeroplanes if they do not fall within one of the categories set out in Volume I of Annex 16/5, but use aerodromes situated in any Member State, are certificated in accordance with requirements which are at least equal to the applicable standards specified in Part II, Chapter 2 or 6 of Volume I of Annex 16/5 when being newly registered in its territory.'

5. Under point 6.3 of Chapter 6 of Annex 16/5 to the Convention, the maximum noise level is not to exceed 68 dB(A) in the case of propeller-driven aeroplanes whose weight is less than or equal to 600 kg and 80 dB(A) in the case of those weighing between 1 500 and 9 000 kg. Between 600 and 1 500 kg, the maximum noise level varies from 68 to 80 dB(A) in accordance with the weight.

6. In 1992 Aher-Waggon bought in Denmark a propeller-driven Piper PA 28-140 aircraft which had been registered in that State since 1974.

7. In July 1992 it applied to the Bundesamt for German registration for the aircraft, which was refused on the ground that it exceeded the noise limits permitted in Germany.

8. While, with a sound level of 72.2 dB(A) for a maximum take-off weight of 976 kg, the aircraft at issue in the main proceedings complies with the relevant Community standards (73 dB(A)), it actually exceeds the German thresholds (69 dB(A)).

9. Aher-Waggon was unsuccessful in its action before the Verwaltungsgericht (Administrative Court) and on appeal.

10. Aher-Waggon then claimed, in an application for review on a point of law before the Bundesverwaltungsgericht, that the refusal to grant it German registration was contrary to Community law. It relied on the fact that aircraft of the same type already registered in Germany and with the same sound level retained their registration.

11. According to Aher-Waggon, by virtue of Paragraph 8(1)(7) of the Luftverkehrs-Zulassungs-Ordnung (German Rules on Air Traffic Registration), published on 13 March 1979 (Bundesgesetzblatt I, p. 308) and amended, in particular, by Article 2 of the Unterschallverordnung (Regulation on Subsonic Aircraft) of 21 July 1986 (Bundesgesetzblatt I, p. 1097), aircraft which obtained German registration before

    the Directive was implemented retained it even if they did not meet the new domestic requirements.

12. The Bundesverwaltungsgericht noted first that the relevant provisions of the Directive merely laid down minimum requirements, so that the barriers to trade arising from the stricter German noise limits did not, in principle, infringe Community law.

13. It pointed out, however, that in the case before it the tightening of the minimum European standards concerned only aircraft from the other Member States of the Community. Since it had doubts as to whether such a difference in treatment was permissible on grounds relating to the safeguarding of acquired rights vis-à-vis owners of aircraft already registered in Germany, it referred the following question to the Court for a preliminary ruling:

    'Is it compatible with the principles of the free movement of goods under Article 30 of the EC Treaty for German law, on the basis of the noise emission limits for aircraft under Directive 80/51/EEC, as amended by Directive 83/206/EEC, which are laid down as minimum requirements, to make the registration of aircraft in the Federal Republic of Germany conditional upon compliance with stricter noise limits, with the result that aircraft registered in another Member State before the said directive was adopted may no longer be granted registration in Germany because they exceed German noise limits, even though aircraft of the same construction which had already obtained German registration beforehand may retain it without restrictions?'

14. By that question, the national court essentially asks whether Article 30 of the Treaty precludes national legislation which makes the first registration in national territory of aircraft previously registered in another Member State conditional upon compliance with stricter noise standards than those laid down by the Directive, while exempting from those standards aircraft which obtained registration in national territory before the Directive was implemented.

15. It should be noted at the outset that the Directive merely lays down minimum requirements, as is shown by the words 'in accordance with requirements which are at least equal to the applicable standards' which appear in Article 3(1). The Directive thus allows the Member States to impose stricter noise limits.

16. Nevertheless, it is necessary to consider whether a Member State which, like the Federal Republic of Germany, has introduced stricter noise limits has, in exercising that power, infringed other provisions of Community law, in particular Article 30 of the Treaty. Even though the Directive is based on Article 84(2) of the Treaty, which enables the Council to adopt appropriate provisions for air transport, it is settled case-law that that provision cannot be interpreted as excluding air transport from the general rules of the Treaty (see Case 167/73 Commission v France [1974]

    ECR 359, paragraph 31, and Joined Cases 209/84 to 213/84 Ministère Public v Asjes and Others [1986] ECR 1425, paragraphs 44 and 45).

17. In that regard, it is settled case-law that any measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade constitutes a measure having an effect equivalent to a quantitative restriction (Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).

18. National legislation of the kind at issue in the main proceedings restricts intra-Community trade since it makes the first registration in national territory of aircraft previously registered in a Member State conditional upon compliance with stricter noise standards than those laid down by the Directive, while exempting from those standards aircraft which obtained registration in national territory before the Directive was implemented.

19. Such a barrier may, however, be justified by considerations of public health and environmental protection of the kind relied upon by the German Government. The German Government states in particular that the Federal Republic of Germany, which is a very densely populated State, attaches special importance to ensuring that its population is protected from excessive noise emissions.

20. It is also settled case-law that national legislation which restricts or is liable to restrict intra-Community trade must be proportionate to the objectives pursued and that those objectives must not be attainable by measures which are less restrictive of such trade (Joined Cases C-34/95, C-35/95 and C-36/95 KO v De Agostini and TV-Shop [1997] ECR I-3843, paragraph 45, and Case C-189/95 Franzén [1997] ECR I-5909, paragraph 75).

21. As regards the imposition of stricter standards than those laid down in the Directive, suffice it to state that, as the German Government has explained, limiting noise emissions from aircraft is the most effective and convenient means of combating the noise pollution which they generate. Without extremely costly investment, it is generally difficult to reduce noise emissions appreciably by carrying out works in the vicinity of airports.

22. Furthermore, the restriction, through stricter rules governing noise emissions from aircraft, on the possibility of registering an aircraft in Germany applies to all aircraft, new or used, irrespective of their origin, and does not prevent aircraft registered in another Member State from being used in Germany.

23. As regards, more particularly, the exemption from those stricter standards for aircraft registered in the Member State in question before the Directive was implemented, those aircraft must, as the German Government has explained, also comply with the stricter noise standards when they undergo technical modification, even if it has no bearing on noise emissions, or when they are temporarily

    withdrawn from service. Furthermore, their number can be determined by the German authorities.

24. The national authorities were thus entitled to consider that the number of aircraft not meeting the stricter noise standards was necessarily going to fall and, therefore, that the overall level of noise pollution could not fail to diminish gradually. Furthermore, the effectiveness of that policy of progressively eliminating from the national fleet aircraft not meeting the stricter noise standards would be undermined if their number could be increased, to an extent not foreseeable by the national authorities, by aircraft from other Member States.

25. Legislation of the kind at issue in the main proceedings therefore does not appear to be disproportionate.

26. In the light of the foregoing considerations, the answer must be that Article 30 of the Treaty does not preclude national legislation which makes the first registration in national territory of aircraft previously registered in another Member State conditional upon compliance with stricter noise standards than those laid down by the Directive, while exempting from those standards aircraft which obtained registration in national territory before the Directive was implemented.

    Costs

27. The costs incurred by the German and Danish Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Bundesverwaltungsgericht by order of 25 September 1996, hereby rules:

Article 30 of the EC Treaty does not preclude national legislation which makes the first registration in national territory of aircraft previously registered in another Member State conditional upon compliance with stricter noise standards than those laid down by Council Directive 80/51/EEC of 20 December 1979 on the limitation of noise emissions from subsonic aircraft, as amended by Council Directive 83/206/EEC of 21 April 1983, while exempting from those standards aircraft which obtained registration in national territory before that directive was implemented.

GulmannWathelet Moitinho de Almeida JannSevón

Delivered in open court in Luxembourg on 14 July 1998.

R. Grass C. Gulmann

Registrar President of the Fifth Chamber

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1: Language of the case: German.