Provisional text

delivered on 13 January 2022 (1)

Case C-353/20

Skeyes

Ryanair DAC, formerly Ryanair Ltd

(Request for a preliminary ruling from the tribunal de l’entreprise du Hainaut, division de Charleroi (Business Court, Hainaut, Charleroi Division, Belgium))

( Reference for a preliminary ruling – Air transport – Regulation (EC) No 550/2004 – Provision of air navigation services – Service providers – Exercise of the powers of a public authority – Infringement of the obligation to provide those services – Hindrance to the user’s freedom to provide services and to conduct a business – Effective judicial protection )

1.This request for a preliminary ruling has been made in proceedings between Skeyes, the exclusive provider of civil air traffic control services in Belgium, and the airline Ryanair concerning an injunction issued against Skeyes by the Tribunal de l’entreprise du Hainaut, division de Charleroi (Business Court, Hainaut, Charleroi Division, Belgium) ordering it to reopen Belgian airspace following industrial action by its staff.

2.The referring court asks the Court of Justice to interpret, inter alia, Article 8 of Regulation (EC) No 550/2004 on the provision of air navigation services in the single European sky. (2) It enquires whether that regulation is intended to remove alleged infringements of the relevant provider’s obligation to provide services from review by the courts and whether, as well as excluding application of the rules of competition, the regulation excludes application of other rules of EU law, in particular those prohibiting hindrances to the freedom to conduct a business and to provide services.

3.This case will provide the Court with an opportunity for the first time to interpret Regulation No 550/2004, enacted pursuant to Regulation (EC) No 549/2004 laying down the framework for the creation of the single European sky. (3) However, this case is of interest beyond the immediate context of Regulation No 550/2004, since it raises issues concerning both the applicability of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and whether it is possible to rely on economic freedoms, that is to say, the freedoms to conduct a business and to provide services, against an exclusive provider of civil air traffic services which enjoys the powers of a public authority.

II. Legal context

4.Recitals 1, 3, 7 and 10 of Regulation No 549/2004 state:

‘(1) Implementation of the common transport policy requires an efficient air transport system allowing safe and regular operation of air transport services, thus facilitating the free movement of goods, persons and services.

…

(3) Smooth operation of the air transport system requires a consistent, high level of safety in air navigation services allowing optimum use of Europe’s airspace and a consistent, high level of safety in air travel, in keeping with the duty of general interest of air navigation services, including public service obligations. It should therefore be carried out to the highest standards of responsibility and competence.

…

(7) Airspace constitutes a limited resource, the optimum and efficient use of which will be possible only if the requirements of all users are taken into account and where relevant, represented in the whole development, decision-making process and implementation of the single European sky, including the Single Sky Committee.

…

(10) Air navigation services, in particular air traffic services which are comparable to public authorities, require functional or structural separation and are organised according to very different legal forms in the various Member States.’

5.Article 1 of that regulation, entitled ‘Objective and scope’, provides in paragraph 1:

‘The objective of the single European sky initiative is to enhance current safety standards and overall efficiency for general air traffic in Europe, to optimise capacity meeting the requirements of all airspace users and to minimise delays. …’

6.Article 2 of that regulation, entitled ‘Definitions’, provides:

‘For the purpose of this Regulation and of the measures referred to in Article 3, the following definitions shall apply:

…

4. “air navigation services” means air traffic services; communication, navigation and surveillance services; meteorological services for air navigation; and aeronautical information services;

5. “air navigation service providers” means any public or private entity providing air navigation services for general air traffic;

…

8. “airspace users” means all aircraft operated as general air traffic;

…’

7.Recitals 3 to 6, 8, 10 and 13 of Regulation No 550/2004 state:

‘(3) Regulation [No 549/2004] lays down the framework for the creation of the single European sky.

(4) In order to create the single European sky, measures should be adopted to ensure the safe and efficient provision of air navigation services consistent with the organisation and use of airspace as provided for in Regulation (EC) No 551/2004 of the European Parliament and of the Council of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation). [4] The establishment of a harmonised organisation for the provision of such services is important in order to respond adequately to the demand of airspace users and to regulate air traffic safely and efficiently.

(5) The provision of air traffic services, as envisaged by this Regulation, is connected with the exercise of the powers of a public authority, which are not of an economic nature justifying the application of the Treaty rules of competition.

(6) Member States are responsible for monitoring the safe and efficient provision of air navigation services and for the control of compliance by air navigation service providers with the common requirements established at Community level.

…

(8) Smooth operation of the air transport system also requires uniform and high safety standards for air navigation service providers.

(10) Whilst guaranteeing the continuity of service provision, a common system should be established for certifying air navigation service providers, which constitutes a means for defining the rights and obligations of those providers and for regular monitoring of compliance with such requirements.

…

(13) The provision of communication, navigation and surveillance services, as well as aeronautical information services, should be organised under market conditions whilst taking into account the special features of such services and maintaining a high level of safety.’

8.Article 2(1) of Regulation No 550/2004 provides:

‘The national supervisory authorities referred to in Article 4 of [Regulation No 549/2004] shall ensure the appropriate supervision of the application of this Regulation, in particular with regard to the safe and efficient operation of air navigation service providers which provide services relating to the airspace falling under the responsibility of the Member State which nominated or established the relevant authority.’

9.Under Article 6 of Regulation No 550/2004, entitled ‘Common requirements’:

‘Common requirements for the provision of air navigation services shall be established in accordance with the procedure referred to in Article 5(3) of [Regulation No 549/2004]. The common requirements shall include the following:

– technical and operational competence and suitability,

– systems and processes for safety and quality management,

– reporting systems,

– quality of services,

– financial strength,

– liability and insurance cover,

– ownership and organisational structure, including the prevention of conflicts of interest,

– human resources, including adequate staffing plans,

– security.

10.Article 7(7) of Regulation No 550/2004 provides:

‘National supervisory authorities shall monitor compliance with the common requirements and with the conditions attached to the certificates. Details of such monitoring shall be included in the annual reports to be submitted by Member States pursuant to Article 12(1) of [Regulation No 549/2004]. If a national supervisory authority finds that the holder of a certificate no longer satisfies such requirements or conditions, it shall take appropriate measures while ensuring continuity of services. Such measures may include the revocation of the certificate.’

11.Article 8 of Regulation No 550/2004, entitled ‘Designation of air traffic service providers’, provides:

‘1. Member States shall ensure the provision of air traffic services on an exclusive basis within specific airspace blocks in respect of the airspace under their responsibility. For this purpose, Member States shall designate an air traffic service provider holding a valid certificate in the Community.

…’

12.Article 2(14) of Regulation (EC) No 1008/2008 (5) provides:

‘For the purposes of this Regulation:

…

(14) “traffic right” means the right to operate an air service between two Community airports’.

13.Article 3 of that regulation, entitled ‘Operating licence’, provides in paragraph 1:

‘No undertaking established in the Community shall be permitted to carry by air passengers, mail and/or cargo for remuneration and/or hire unless it has been granted the appropriate operating licence.

An undertaking meeting the requirements of this Chapter shall be entitled to receive an operating licence.’

14.Article 15(1) of that regulation states:

‘Community air carriers shall be entitled to operate intra-Community air services.’

15.According to Article 19(1) of that regulation:

‘The exercise of traffic rights shall be subject to published Community, national, regional and local operational rules relating to safety, security, the protection of the environment and the allocation of slots.’

B. Belgian law

16.Article 1(1) and (4) of the loi du 21 mars 1991 portant réforme de certaines entreprises publiques (Law on the reform of certain public undertakings of 21 March 1991), as amended by the Law of 16 December 2015, (‘the Law on public undertakings’) provides:

‘(1) Any public interest body which is to enjoy autonomy of management in a given industrial or commercial sector may, once its articles of association have been lawfully brought into line with the provisions of this title, obtain such autonomy by concluding a management contract with the State in accordance with the conditions laid down in this Law.

…

(4) The bodies classified as autonomous public undertakings are:

…

(4) Skeyes’.

17.Article 170 of the Law on public undertakings provides:

‘Skeyes shall have as its objects:

(1) to ensure the safety of air navigation in the airspace for which the Belgian State is responsible under the Convention on International Civil Aviation of 7 December 1944, [6] in particular Annex 2, approved by the Law of 30 April 1947, or under any other international agreement;

(2) to ensure the control of movements of aircraft approaching Brussels-National Airport, landing and taking off at that airport and on its runways and taxiways and the marshalling of aircraft on the aprons, and to continue to ensure the safety of air traffic at the public regional airports and aerodromes in accordance with the cooperation agreement concluded with the Regions on 30 November 1989;

(3)to provide the police and aeronautical and airport inspection services with information on aircraft, the piloting of aircraft, aircraft movements and the observable effects of those movements;

(4)to provide meteorological information for air navigation and telecommunications or other services related to the activities referred to in paragraphs 1 or 2.’

18.Under Article 171 of the Law on public undertakings:

‘The activities referred to in Article 170(1) to (3) shall constitute public service tasks.’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

19.The Kingdom of Belgium designated the Belgian autonomous public undertaking Skeyes as the exclusive Belgian civil air traffic service provider, in accordance with Article 8 of Regulation No 550/2004. As the controller of Belgian airspace, its task is to ensure the provision of air navigation services in that space.

20.The undertaking has in the past experienced episodes of industrial unrest. Specifically, on several occasions in the period between February and May 2019 Skeyes had reason to close Belgian airspace because of a lack of available staff, as a result of industrial action by a number of air traffic controllers. In that context, Skeyes took ‘zero rate’ measures, meaning that no aircraft may take off, land in or transit through that airspace.

21.As a result of Belgian airspace being closed on 16 May 2019, due to a large number of air traffic controllers not being at work, the airline Ryanair, which operates in Belgium from the airports of Charleroi (Belgium) and Brussels (Belgium), lodged an application for interim relief on grounds of extreme urgency with the Tribunal de l’entreprise du Hainaut, division de Charleroi (Business Court, Hainaut, Charleroi Division), the referring court, seeking an order that Skeyes ensure the normal operation of air traffic.

22.The referring court granted Ryanair’s application by an order of the same date, for whose breach Skeyes would be subject to a financial penalty of EUR 250 000 for each hour that Belgian airspace remained closed. The effects of that order were limited to the period from 16 to 24 May 2019. Since Ryanair received that order at 15:38 on 16 May 2019, by which time the airspace had been re-opened to air traffic, and that no further disruption had occurred by 24 May 2019, the order ceased to be effective without any financial penalties having been imposed.

23.Skeyes brought third party proceedings against that order before the referring court, pleading that the referring court did not have jurisdiction to hear Ryanair’s application. Skeyes submitted principally that that court did not have jurisdiction to hear the application relating to its function as controller of Belgian airspace. In its view, Ryanair has no individual right entitling it to make such an application since the regulation of Belgian airspace is exclusively a matter of Skeyes’ discretion. In the alternative, Skeyes submits that, as a company governed by public law, it cannot fall within the jurisdiction of that court, which is a business court.

24.According to the order for reference, under Belgian law administrative decisions are not, in principle, within the jurisdiction of the ordinary courts. Such decisions fall under the jurisdiction of the Conseil d’État (Council of State, Belgium), which rules on actions for annulment against unilateral acts by administrative authorities on the ground of infringement of procedural requirements which are essential or breach of which leads to nullity, or on the ground of abuse or misuse of powers. Nevertheless, the judiciary has jurisdiction to prevent or make good any wrongful infringement of a subjective right by an administrative authority in the exercise of its discretionary power. The fact that such an authority has discretion therefore does not preclude the ordinary courts from having jurisdiction, provided the action is seeking the restoration of subjective rights.

25.Entertaining doubts as to any limits there may be on the discretionary power that the regulation in question allows to providers of air traffic services, the tribunal de l’entreprise du Hainaut, division de Charleroi (Business Court, Hainaut, Charleroi Division) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Must [Regulation No 550/2004], in particular Article 8 thereof, be interpreted as meaning that it authorises the Member States to remove from review by the courts of that Member State any alleged failures to fulfil the obligation to provide services by the air traffic services provider, or must the provisions of that regulation be interpreted as meaning that they require the Member States to provide an effective remedy against any such alleged breaches, account being taken of the nature of the services to be provided?

(2)Must Regulation No 550/2004, inasmuch as it states that “the provision of air traffic services, as envisaged by this Regulation, is connected with the exercise of the powers of a public authority, which are not of an economic nature justifying the application of the Treaty rules on competition”, be interpreted as excluding not only the rules on competition per se, but also any other rules applicable to public undertakings active on a market for goods and services which have an indirect effect on competition, such as those prohibiting hindrances to the freedom to conduct business and to provide services?’

26.Skeyes, Ryanair, the Belgian, Spanish and Polish governments and the European Commission lodged written observations. With the exception of the Spanish Government, those parties also presented oral argument at the hearing on 20 October 2021.

27.The Belgian Government submits, principally, that the two questions referred to the Court by the national court are inadmissible. As regards the first question, the Belgian Government submits, first, that the referring court merely reproduces Skeyes’ position and fails to identify the relevant national provisions. Second, the first question for a preliminary ruling is also inadmissible on the ground that that court does not state how the answer to that question would enable it to determine the dispute before it. As regards the second question, the Belgian Government submits, first, that it is drafted in terms which are too general to allow written observations to be made and, second, that the question does not comply with the requirements of Article 94 of the Rules of Procedure of the Court of Justice.

28.In my view those arguments must be dismissed. According to the Court’s settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. It follows that questions referred by the national courts enjoy a presumption of relevance and that the Court may refuse to rule on those questions only where it is quite obvious that the interpretation that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to those questions. (7)

29.However, that is clearly not the case here, since the interpretation sought by the national court of the rules of the European Union, and in particular of the provisions of Regulation No 550/2004, is directly related to the subject matter of the main proceedings, the problem raised by those proceedings being not hypothetical but real, and the Court having before it the factual and legal elements necessary to give a useful answer to the questions referred.

30.In those circumstances, I take the view that the questions referred for a preliminary ruling are admissible.

B. The first question referred

31.By its first question, the referring court enquires, in essence, whether Regulation No 550/2004, and in particular Article 8, must be interpreted as meaning that an air carrier can bring an action before the national courts against the provider of air navigation services, (8) in order to obtain judicial review of alleged failures by that provider to fulfil its obligation to provide services.

32.I note at the outset that Regulation No 550/2004 was enacted under Regulation No 549/2004 laying down the framework for the creation of the single European sky. (9) In my view therefore the following analysis should not be confined to Regulation No 550/2004 but regard should also be had to both Regulation No 549/2004 and Regulation No 1008/2008, which establishes the common rules for the operation of air services within the European Union.

33.In order to provide a response of use to the referring court, it is necessary, first of all, to examine whether those regulations confer rights on air carriers – a matter on which the parties have expressed diverging views – (1) and then to analyse whether the existence of any such rights entitles an air carrier to bring an action against a decision to close airspace such as that taken by Skeyes (2).

34.It should be borne in mind that air carriers operating flights in the territory of the European Union operate on the basis of licences issued by the Member States under Regulation No 1008/2008.

35.Specifically, the second subparagraph of Article 3(1) of that regulation provides that an undertaking meeting the requirements set out in Chapter II of that regulation is entitled to receive an operating licence, which is a prerequisite for carrying on an activity in the field of air transport.

36.Article 15(1) of Regulation No 1008/2008 enshrines the freedom to provide air transport services, since it provides that an air carrier – the holder of a valid licence – is entitled to operate intra-Community air services.

37.It follows that both the right of an operator who satisfies the requirements set out by Regulation No 1008/2008 in order to obtain a licence and the right to carry on the activities covered by that licence once it is obtained, are rights guaranteed by EU law.

38.I note furthermore that, independently of the rights conferred by secondary EU law, air carriers enjoy the rights and freedoms conferred by primary EU law, including the right to conduct a business and the freedom to provide services under Article 16 of the Charter and Article 56 TFEU.

39.Air navigation service providers, for their part, are designated by the Member States in accordance with EU law. The powers allocated to those providers, which they exercise as holders of the powers of a public authority, flow from the provisions adopted by a Member State in order to implement Article 8 of Regulation No 550/2004.

40.Air navigation service providers are therefore required to comply with certain obligations as part of the tasks entrusted to them, which include the obligation to ensure the continuity of air traffic control services. It should be borne in mind that by virtue of Article 1 of Regulation No 550/2004, read together with Article 7(7) thereof, (10) the continuity of air traffic control services is one of the objectives of EU law.

41.In specific terms, the principal objectives of the single European sky include the safe and efficient provision of air navigation services in order to meet ‘the requirements of all airspace users’. (11) I note in that respect that Article 2(8) of Regulation No 549/2004 defines ‘airspace users’ as ‘all aircraft operated as general air traffic’.

42.It should be noted that an air carrier is only able to exercise the rights and freedoms conferred on it by primary and secondary EU law if the air navigation service providers perform the tasks incumbent upon them, foremost among which is the continuity of provision of air navigation services.

43.However, in the present case the objective of the continuity of air traffic control services is closely linked to the objective of aviation safety. Accordingly, although air carriers have specific rights, those rights are subject to the rules of EU law relating to safety. The provisions of Regulation No 1008/2008 confirm that to be so, since the freedom to provide air transport services within the European Union established in Article 15 of that regulation is qualified by Article 19(1), according to which the exercise of that freedom is subject to EU operational rules relating to safety. The objective of aviation security is moreover also at the heart of Regulations No 549/2004 (12) and No 550/2004. (13)

44.The obligation to provide air navigation services incumbent on the service providers entrusted with that task is therefore not absolute and unconditional: the activities of a designated provider may be suspended, albeit solely for objective reasons, foremost among which is aviation safety. In such a situation, in which the service provider is obliged, for example, to apply a ‘zero rate’ measure and effectively to close the airspace to air carriers, it is conceivable that a carrier may no longer be able to carry on the activities covered by its licence.

45.It should nevertheless be noted that the concept of aviation safety can only be defined by reference to objective factors, that is to say, events beyond the control of the service provider in question (such as adverse meteorological conditions, a volcanic eruption, an act of terrorism or war) or events linked to achieving the objective of aviation safety itself (such as upgrading air-traffic control systems or building new control towers or other facilities to enhance aviation safety). In principle, a provider of air navigation services therefore cannot rely on aviation safety as grounds for taking a zero rate measure where the airspace was closed for ‘internal’ reasons – such as organisational reasons that caused a shortage of air traffic controllers – which are entirely attributable to that provider. In any event, as set out in point 77 of this Opinion, a decision by an air navigation services provider to close the airspace must be amenable to review by the courts even where the service provider relies on reasons associated with aviation security.

46.As regards the first part of the first question referred, the referring court expresses doubts, in essence, as to whether Article 8 of Regulation No 550/2004 must be interpreted as meaning that it allows the Member States to remove from control by the courts alleged infringements of the obligation on the designated providers to provide air navigation services.

47.I note that, as can be seen from its title, that article concerns the designation of air traffic service providers by the Member States, specifying in paragraph 2 that it is the Member States that define the rights and obligations to be met by the designated service providers. I would also note that Article 8 is the legal basis on which the Kingdom of Belgium designated Skeyes as the exclusive provider of Belgian civil air traffic services.

48.

It needs to be clarified in that respect that the question put by the referring court concerns neither an assessment of Skeyes’ designation as the air navigation services provider as such nor the monitoring by the Kingdom of Belgium of the manner in which Skeyes performs its tasks. The first question referred in fact concerns only whether alleged infringements of the obligation on the air navigation services provider to provide services can be removed from review by the courts.

49.Article 8 of Regulation No 550/2004 contains no provision requiring or authorising the Member States to remove disputes between an air navigation services provider and airspace users from review by the national courts. Indeed, that article has no bearing on any review the Member State courts may exercise over providers of air navigation services and therefore offers no ‘immunity from jurisdiction’ to those providers.

50.I am accordingly of the view, in the light of the foregoing, that Article 8 of Regulation No 550/2004 must be interpreted as meaning that it does not authorise the Member States to remove alleged infringements by the air navigation services provider of its obligation to provide services from review by the national courts. I also note that any immunity from jurisdiction, as an exception to the principle of judicial review, can only be adduced where it is expressly laid down, which it is not in the present case.

51.As regards the second part of the first question referred, the referring court enquires, in more general terms, whether Regulation No 550/2004 must be interpreted as meaning that air carriers must have a right to a remedy against alleged infringements of the obligation on the designated provider to provide air navigation services.

52.On that point, Ryanair and the Polish and Spanish governments submit that that question should be answered in the affirmative. In contrast, the defendant, the Belgian Government and the Commission assert the opposite.

53.Ryanair considers that, although Regulation No 550/2004 contains no provision concerning review exercised by the Member State courts over providers of air navigation services, that silence cannot be interpreted as conferring immunity from jurisdiction on those providers, which remain subject to the requirements of EU law. Under Article 19 TEU, Article 47 of the Charter and the relevant case-law of the Court of Justice on the principle of effective judicial protection, it is for the Kingdom of Belgium, in the present case, to ensure that air carriers have a judicial remedy against those service providers in the event that they fail to comply with their obligations under EU law.

54.The Polish Government submits that Article 8 of Regulation No 550/2004, together with Article 47 of the Charter, must be interpreted as guaranteeing air carriers a right to an effective remedy to apply for the cessation of disruption caused by the air navigation services provider, where the reasons for that disruption are exclusively attributable to that provider.

55.The Spanish Government, for its part, considers that were alleged infringements by a provider of air navigation services in the context of its tasks to be removed from review by the courts, the right of an airspace user, such as Ryanair, to carry on its activities in exercise of the freedom to provide services could be so limited as the result of an administrative decision adversely affecting the interests of that user as to amount to an infringement of its right to an effective remedy.

56.The Commission, conversely, takes the view, first, that there is no provision of Regulation No 550/2004 that confers on air carriers direct rights vis-à-vis providers of air navigation services. The absence of any such provision is in its view justified by the paramount objective of aviation safety, pursued by that regulation, which it considers to be incompatible with any judicial review of the decisions of those service providers. The Commission submits, second, that in the event that the designated providers are deficient in the exercise of their functions, it is for the competent authorities of the Member States concerned which supervise the exercise of those functions by the service providers to take the necessary measures to remedy those failings.

57.Skeyes and the Belgian Government both endorse the Commission’s view and also submit that airspace users are able to rely on the right to effective judicial protection under Article 47 of the Charter only where there is an infringement of a right or freedom guaranteed by EU law. In their view, Regulations No 549/2004 and No 550/2004 confer no subjective rights on Ryanair. Specifically, those regulations establish neither an obligation on the providers of air navigation services to provide services nor any right on the part of airspace users to be provided with services.

58.Skeyes and the Belgian Government consider in that respect that, pursuant to the principle of the separation of powers, the fact that the power at issue is discretionary affects the type of measures that a court could ultimately take against a provider of air navigation services. In their view, that principle can preclude the national courts from standing in the place of that service provider by adopting measures falling within its discretionary power. Skeyes and the Belgian Government also assert that, even though EU law does not guarantee any rights benefiting Ryanair in the present case, in practice Belgian law contains several avenues by which the courts could review acts by Skeyes.

59.I am of the view that Regulation No 550/2004 should be interpreted as meaning that air carriers must have a right to a remedy against such a decision, in order to challenge alleged failures by that provider to fulfil its service provision obligation.

60.First, it should be borne in mind that Article 47 of the Charter states, in its first paragraph, that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy, on the terms laid down in that article. The corollary of that right is the obligation on Member States, contained in the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.

61.Similarly, according to consistent case-law, the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950. Under the principle of cooperation laid down in Article 4(3) TEU, it is for the courts of the Member States to ensure judicial protection of an individual’s rights under EU law.

62.As regards the remedies that the Member States must establish, although the FEU Treaty has made it possible in a number of instances for natural and legal persons to bring a direct action, where appropriate, before the EU Courts, neither the FEU Treaty nor Article 19 TEU was intended to create new remedies in the national courts to ensure the observance of EU law other than those already laid down by national law.

63.Accordingly, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. It would be otherwise only if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, albeit indirectly, respect for an individual’s rights under EU law, or if the sole means whereby individuals could obtain access to a court was by breaking the law.

64.In that regard, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of those rights conferred by EU law (principle of effectiveness).

65.In relation specifically to interim relief, it must be recalled that, according to settled case-law, a national court seised of a dispute governed by EU law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under EU law.

66.It needs to be stated at the outset that, unlike the case which gave rise to the judgment in Unibet, which Ryanair in particular adduced in its written observations, the present case raises the question not of ‘creating’ a new (free-standing) remedy not laid down by internal law, but rather of whether Ryanair can make an application on grounds of extreme urgency on the basis of a remedy already existing in national law.

67.As I indicated in point 24 of this Opinion, the case in the main proceedings concerns specifically the allocation between the Belgian administrative and civil courts of jurisdiction over actions brought by persons against administrative authorities or public undertakings on which the Belgian State has conferred the powers of a public authority, where the ‘subjective rights’ of those persons are at stake.

68.It can be seen from the decision to refer that, although Ryanair was able to bring an action before the national courts, uncertainty exists both as regards the nature of that action (that is to say, whether it is limited to an action for non-contractual liability before an administrative court or includes also an action on grounds of extreme urgency) and the jurisdiction of the referring court to hear the action, in view of the uncertainty regarding Ryanair’s standing to bring the action in question.

69.As I mentioned in point 63 of this Opinion, according to settled case-law it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction to hear actions for safeguarding rights which persons derive from EU law and to determine the detailed procedural rules governing those actions. The allocation between the Belgian courts of jurisdiction to hear such an application is therefore not a matter of EU law. Although under Belgian law and the applicable procedural rules a different court may have had jurisdiction validly to hear Skeyes’s application – that is to say, pursuant to an application on grounds of urgency – that is a matter to be determined by the domestic legal system.

70.Second, I note that Skeyes and the Belgian Government base their line of argument on the premiss that permitting the use of a remedy such as that used in the main proceedings is tantamount to allowing the judiciary to stand in place of the administration by itself exercising the discretionary power at issue.

71.In my view that argument cannot succeed.

72.The present situation is indeed not a matter of the judiciary questioning the discretionary power of the providers of air navigation services or standing in place of the administration by itself exercising the discretionary power at issue, but of the national court ‘reviewing’ a (very specific) decision made by the administration which allegedly threatens adversely to affect air carriers and their users. As explained above, to my mind the national court must be able to carry out such an assessment since air carriers such as Ryanair would otherwise be deprived of an effective judicial remedy within the meaning of Article 47 of the Charter.

73.Furthermore, as I highlighted in points 39 and 40 of this Opinion, I believe that Regulations No 550/2004 and No 549/2004 are intended precisely to meet the needs of airspace users. Alleged failings by an air navigation services provider in performance of its tasks therefore cannot be removed from review by the courts, since the very purpose of those regulations would otherwise be frustrated.

74.Third, as regards the Commission’s argument relating to safety, it should be borne in mind that the obligation to provide air navigation services is not absolute, and that the activities of a designated provider may therefore be suspended for objective reasons, foremost among which is safety. Nevertheless, as the Polish Government correctly notes, that circumstance cannot result in carriers being systematically denied an opportunity to seek judicial review of decisions by that provider in all circumstances.

75.Moreover, to allow a provider of air navigation services to limit air traffic at its own discretion relying on safety grounds that are not subject to review by the courts would by definition be contrary to the objectives of the single European sky and would restrict the fundamental rights and freedoms of both air carriers and EU citizens. I am therefore of the view that, despite its paramount importance for the functioning of the single European sky, the objective of aviation safety cannot be seen in isolation but must be interpreted in the light not only of the other fundamental objectives of the single European sky but of other fundamental freedoms more generally (such as the freedom to provide services and the free movement of goods and persons in the context of the Schengen area). What would be the meaning of the single European sky if each Member State could close its airspace at its discretion?

76.Nor do I see how a finding that the courts can exercise review – even in the form of an action on grounds of extreme urgency – would be likely to undermine or even compromise aviation safety. I consider on that point that whether or not a provider of air navigation services can rely on grounds relating to aviation safety to close airspace is a matter unrelated to the jurisdiction of a court or even to whether a court action is admissible. It is instead a substantive matter that needs to be subject to review by the courts so that the safety grounds relied upon by that provider can be assessed in order to determine whether the closure of airspace is justified.

77.That interpretation is especially justified in the present case since it is clear from the grounds of the request for a preliminary ruling that the ‘zero rate’ measure was applied because of a lack of air traffic controllers. In the present case, that safety measure was applied for organisational reasons exclusively attributable to Skeyes, not as the result of external events which may have been caused independently of any action (or inaction) by that provider, such as, for example adverse meteorological conditions, a volcanic eruption or an act of terrorism. I therefore consider that, even though it may be acceptable to discontinue air navigation services where doing so is the result of a strike amounting to force majeure, doing so appears not to be acceptable where the industrial action in question does not consist of isolated events but seems to be repeated over the period concerned without the provider at issue being compelled to take the necessary measures to ensure the continuity of air navigation services. In any event, it is ultimately for the national court to assess all the foregoing hypotheses.

78.Accordingly, to uphold the Commission’s position would be tantamount to rendering a provider of air navigation services completely immune from most legal actions, even in situations – which have no bearing on the facts of the present case – in which that provider unjustifiably (or even abusively) relied on safety reasons as grounds for not fulfilling its obligation to provide air navigation services.

79.In the light of the foregoing, I believe that were a provider able to close its airspace at its discretion relying on safety grounds without that decision being subject to review by the courts, that circumstance would be likely to compromise the rights and freedoms of air carriers and their users under EU law. Moreover, the fact that such an administrative decision is made in exercise of a discretionary power should not, in principle, preclude judicial review of that decision.

80.Fourthly and lastly, I am of the view that the outcome proposed by the Commission – that only the national supervisory authority for air navigation providers is competent to act in respect of any failings by the designated providers in performing their functions – cannot be upheld.

81.I note, first of all, that the review to which the Commission refers is an administrative review rather than review by the courts. The existence of a mechanism for administrative review of the activities of a provider of air navigation services cannot be a substitute for review by the courts or deprive an air carrier of an effective judicial remedy within the meaning of Article 47 of the Charter.

82.Unlike judicial review, which enables persons to bring proceedings before a court or tribunal claiming infringement of one of their rights, the raison d’être (and main objective) of such an administrative review is not to protect the individual rights of airspace users but is broader in scope and is to ensure that the providers of navigation services perform the tasks conferred on them by the Member States. According to Article 7(7) of Regulation No 550/2004, the task of national supervisory authorities is to monitor ‘compliance with the common requirements and with the conditions attached to the certificates’ of those providers, in the absence of which the certificate granted to those providers may be revoked. The ‘common requirements’ for the provision of navigation services, which are defined in Article 6 of Regulation No 550/2004, relate primarily to technical, organisational and operational matters specific to the role of providers of those services and appear not to relate directly to the rights of air carriers. I therefore find that an administrative review, by reason of its nature, purpose and outcome, cannot be compared with or classified as a judicial review.

83.In the light of the foregoing, I propose that the first question referred should be interpreted as meaning that Regulation No 550/2004, and in particular Article 8 thereof, must be interpreted as meaning that it does not authorise alleged infringements by the air navigation services provider of its obligation to provide services to be exempt from review by the courts of the Member State concerned. In contrast, under Article 47 of the Charter air carriers must have access to an effective judicial remedy by which they can bring an end to infringements by the provider designated under Article 8 of Regulation No 550/2004 of its obligation to provide air navigation services.

84.By its second question, the referring court asks the Court to interpret recital 5 of Regulation No 550/2004. On the basis that, according to that recital, the rules of competition do not apply to the supply of air navigation services, that court is uncertain whether that recital also means that all the other rules that have an indirect effect on competition, such as those prohibiting hindrances to the freedom to conduct a business and the freedom to provide services, do not apply.

85.As can be seen from the order for reference, the second question seeks to ascertain whether an air carrier, such as Ryanair, can rely on Article 16 of the Charter or Article 56 TFEU against decisions made by Skeyes in the exercise of its discretionary power.

86.I note at the outset that, in their written observations, the majority of the parties agree that the answer to the second question referred should be in the negative, and I share that position for the following reasons.

87.First, I believe that it follows directly from the wording of recital 5 of Regulation No 550/2004 itself that the answer should be in the negative, since the recital refers only to the rules of competition under the FEU Treaty and does not mention other rules such as those prohibiting hindrances to the freedom to conduct a business and to provide services.

88.Furthermore, it cannot be inferred from any provision of Regulation No 550/2004 that recital 5 is any broader in scope and should be interpreted as preventing the application of other rules of the FEU Treaty to providers of air navigation services. Accordingly, no provision of that regulation provides a basis for expressly stating that providers of air navigation services designated in accordance with that regulation and holding the powers of a public authority are, in the course of their activities, exempt from complying with Article 16 of the Charter and Article 56 TFEU.

89.Second, it should be noted that, even as regards the inapplicability of the rules of competition law referred to in recital 5 of Regulation No 550/2004, that inapplicability is not absolute and is justified by the particular nature of the supply of air navigation services which are provided on an exclusive basis by a provider designated at the discretion of the Member States.

90.In that regard, recital 5 of Regulation No 550/2004 merely reiterates the case-law of the Court established in the judgment in SAT Fluggesellschaft, according to which a derogation from application of the rules of competition is justified by the fact that air traffic services are not of an economic nature because they must be regarded as a task involving the exercise of public authority.

91.It should nevertheless be noted that the inapplicability of the rules of competition law relates only to the exercise of public authority and does not cover all the services attributed to the providers. It is therefore conceivable that, even though certain services of a provider of aviation services may benefit from those rules not being applicable, other services of the same provider may for their part be subject to those rules, in particular where that provider’s activities can be separated from those it exercises as a public authority and can constitute economic activities.

92.Third, it should be borne in mind that providers of air navigation services, such as Skeyes, are responsible for the management and smooth operation of air traffic in the airspace for which they are responsible. That task is without any doubt intrinsically linked to the use of that airspace by users and to their right to provide their services in the single European sky, in the context of the freedom to conduct a business and to provide services. It follows that such an approach, apart from the fact that it finds no justification whatsoever in a literal and contextual interpretation of Regulation No 550/2004, conflicts not only with the freedoms of movement, but also the very objectives of Regulations No 549/2004 and No 550/2004, concerning the need to meet the requirements and demand of airspace users.

93.Lastly I note that, while the preamble of an EU act may explain the content of the provisions of that act and constitutes an important element for the purposes of interpretation, which may clarify the intentions of the author of a legal act, it is nevertheless true that, as already observed in points 87 and 88 of this Opinion, Regulation No 550/2004 contains no provision capable of justifying the exemption considered in the second question.

94.In the light of the foregoing, I propose that the second question referred should be answered as meaning that Regulation No 550/2004 does not exclude the providers designated to supply air navigation services from application of the rules applicable to public undertakings engaged in a market for goods and services, such as the rules prohibiting hindrances to the freedom to conduct a business and to provide services.

95.In the light of the foregoing, I propose that the Court of Justice should answer the questions referred for a preliminary ruling by the Tribunal de l’entreprise du Hainaut, division de Charleroi (Business Court, Hainaut, Charleroi Division, Belgium) as follows:

(1)Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky, and in particular Article 8 thereof, must be interpreted as meaning that it does not authorise alleged infringements by the air navigation services provider of its service provision obligation to be exempt from review by the courts of the Member State concerned. However, under Article 47 of the Charter of Fundamental Rights of the European Union, air carriers must have access to an effective judicial remedy by which they can bring an end to infringements by the provider designated in accordance with Article 8 of that regulation of its obligation to provide air navigation services.

(2)Regulation No 550/2004 does not exclude the providers designated to supply air navigation services from application of the rules applicable to public undertakings engaged in a market for goods and services, such as the rules prohibiting hindrances to the freedom to conduct a business and to provide services.

* * *

4. OJ 2004 L 96, p. 20.

5. Regulation of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3).

6. United Nations Treaty Series, Vol. 15, p. 295.

7. Judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115, paragraphs 55 and 56 and the case-law cited).

8. The expressions ‘air-traffic’ and ‘air navigation’ are used interchangeably in this Opinion.

9. See recitals 3 and 4 of Regulation No 550/2004.

10. See also recital 10 of Regulation No 550/2004.

11. See Article 1 and recital 7 of Regulation No 549/2004 and recitals 4 and 6 of Regulation No 550/2004.

12. See Article 1(1) and recital 3 of Regulation No 549/2004.

14. Ryanair is referring to paragraphs 37 to 39 of the judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163).

15. See points 43 and 44 of this Opinion.

16. In their submission, the general law on non-contractual liability and the usual forms in which the administrative courts review acts by legal persons governed by public law allow effective review of the decisions of an administrative authority such as Skeyes.

17. See judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163, paragraph 37 and the case-law cited).

18. See judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163, paragraph 38 and the case-law cited).

19. See judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163, paragraph 40 and the case-law cited).

21. See judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163, paragraph 41 and the case-law cited).

23. Judgment of 13 March 2007 (C‑432/05, EU:C:2007:163).

24. I would note that although the sole decisive criterion for determining whether the referring court has jurisdiction is the existence of subjective rights, the analysis set out in points 34 to 45 of this Opinion suggests that air carriers, like Ryanair, should in principle be regarded as holders of such subjective rights.

25. See points 43 and 44 of this Opinion.

26. See point 45 of this Opinion.

27. See point 45 of this Opinion.

28. For example, the common requirements include the technical and operational competence and suitability of the providers, their organisational structure and financial strength and their reporting systems.

29. Judgment of 19 January 1994 (C‑364/92, EU:C:1994:7).

30. See recital 13 of Regulation No 550/2004.

31. See points 34 to 41 of this Opinion.

32See points 41 and 42 of this Opinion.

33See judgment of 19 December 2019, <i>Puppinck and Others </i>v <i>Commission</i> (C‑418/18 P, EU:C:2019:1113, paragraph 75).