The tribunal de police de Paris sought a preliminary ruling in criminal proceedings against the executives of airlines and travel agencies, who were charged with infringing the French Civil Aviation Code when selling air tickets by applying tariffs that were different from the approved tariffs. According to the French Code, all airlines had to submit their tariffs to the Government for approval. The Ministry’s decision approving the tariff proposed by an airline rendered that tariff binding on all traders. The tribunal de police asked whether such a system was incompatible with the competition provisions of the Treaty.
Held: The question was understood to ask whether it is contrary to the Member States’ obligations under the Treaty to enforce approved tariffs if those tariffs are the result of an agreement, a decision or a concerted practice between the airlines contrary to Article 85. The Court referred to international agreements concerning civil aviation and the Chicago Convention on International Civil Aviation that re-affirms the principle of each State’s sovereignty over the airspace above its territory. The Court noted that, based on that principle of sovereignty, a network of bilateral agreements has been set up whereby States have authorised the establishment of one or more air routes between their respective territories. Those bilateral agreements follow a standard model which provides, amongst other things, that the tariffs for air services will be fixed by the companies that are authorized to operate the routes envisaged by each agreement. Those tariffs, which are often negotiated under the auspices of the International Air Transport Association (IATA), are then subject to the approval of the authorities of the signatory States. However, the French Government accepted that the bilateral agreements to which they were a signatory did not require them to ignore EU competition rules when approving tariffs.
In light of the structure created by Articles 88 and 89, the fact that an agreement may fall within the ambit of Article 85 does not, the Court held, suffice for it to be immediately prohibited by Article 85(1) and so automatically void under Article 85(2). Such a conclusion would be contrary to the general principle of legal certainty which is a rule of law that must be upheld in the application of the Treaty. It would have the effect of prohibiting and rendering automatically void certain agreements, even before it is possible to ascertain whether Article 85 as a whole is applicable to those agreements. Thus, the Court held, until the entry into force of implementing measures under Article 87, agreements are prohibited under Article 85(1) and are automatically void under Article 85(2) only in so far as they have been held by the authorities of the Member States, pursuant to Article 88, to fall under Article 85(1) and not to qualify for exemption from the prohibition under Article 85(3)
Citations:
R-213/84, [1986] EUECJ R-213/84, [1986] ECR 1425
Links:
Jurisdiction:
European
Cited by:
Cited – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Lists of cited by and citing cases may be incomplete.
Commercial, Transport
Updated: 21 June 2022; Ref: scu.215431