C-336/90

v

C o u n c i l of the E u r o p e a n C o m m u n i t i e s , represented b y A n t o n i o Sacchetini, a D i r e c t o r in its Legal Service, and initially b y J a c q u e s D e l m o l y and s u b s e q u e n t l y b y J o h n C a r b e r y , Legal Advisers in its Legal Service, acting as A g e n t s , w i t h an address

* Language of the case: English.

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GIBRALTAR DEVELOPMENT v COUNCIL

for service in Luxembourg at the office of Bruno Eynard, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad-Adenauer,

A P P L I C A T I O N for the annulment of Article 1(3) of Council Regulation (EEC) N o 2343/90 of 24 July 1990 on access for air carriers to scheduled intra- Community air service routes and on the sharing of passenger capacity between air carriers on scheduled air services between Member States (OJ 1990 L 217, p. 8),

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ORDER OF 12. 7. 1993 — CASE C-336/90

T H E COURT,

composed of: O. Due, President, C. N . Kakouris, G. C. Rodríguez Iglesias, M. Zuleeg and J. L. Murray (Presidents of Chambers), G. F. Mancini, R. Joliét, F. A. Schockweiler, J. C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco, P. J. G. Kapteyn and D. A. O. Edward, Judges,

Advocate General: C. O. Lenz, Registrar: J.-G. Giraud,

GIBRALTAR DEVELOPMENT v COUNCIL

i That regulation replaces and revokes, first, Council Directive 83/416/EEC of 25 July 1983 concerning the authorization of scheduled inter-regional air services for the transport of passengers, mail and cargo between Member States (OJ 1983 L 237, p. 19), as amended by Council Directive 86/216/EEC of 26 May 1986 (OJ 1986 L 152, p. 47) and by Council Directive 89/463/EEC of 18 July 1989 (OJ 1989 L 226, p. 14) and, second, Council Decision 87/602/EEC of 14 December 1987 on the sharing of passenger capacity between air carriers on scheduled air services between Member States and on access for air carriers to scheduled air-service routes between Member States (OJ 1987 L 374, p. 19).

4 Like that decision, and like the aforesaid Directive 89/463, Regulation N o 2343/90 contains a provision suspending its application to Gibraltar airport until the cooperation arrangements agreed between the Governments of the Kingdom of Spain and the United Kingdom come into operation.

5 That provision, which is contained in Article 1(3) of Regulation N o 2343/90, is worded as follows:

'Application of the provisions of this Regulation to Gibraltar airport shall be sus- pended until the arrangements in the Joint Declaration made by the Foreign Min- isters of the Kingdom of Spain and the United Kingdom on 2 December 1987 have come into operation. The Governments of Spain and the United Kingdom will so inform the Council on that date.'

6 The Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 provides in particular, in its paragraph 8, that the arrangements for the joint use of Gibraltar airport will come into oper- ation when the British authorities have notified their Spanish counterparts that the legislation necessary to give effect to paragraph 3.3 (customs and immigration con- trols in the respective terminals) is in force, or on completion of the construction of the Spanish terminal, whichever is the later, but in any event not more than one year after the notification referred to above.

n The interveners have all endorsed and expanded the objection of inadmissibility raised by the Council, maintaining that the regulation in question does not contain any decision of direct and individual concern to the applicant.

i2 Pursuant to Article 91(3) of the Rules of Procedure, where application is made for a decision on an objection in accordance with Article 91(1), the remainder of the proceedings is to be oral, unless the Court decides otherwise. In the present case, the Court considers that it has sufficient information to decide on the admissibility of the application by way of an order, without any oral procedure.

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ΐ3 Article 173 of the E E C Treaty provides as follows:

'The Court of Justice shall review the legality of acts of the Council and the Com­ mission other than recommendations or opinions. It shall for this purpose have jurisdiction in actions brought by a Member State, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural require­ ment, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.

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ORDER OF 12. 7. 1993 — CASE C-336/90

paragraph 13; order in Case 160/88 R Fédération européenne de L· santé animale v Council [1988] E C R 4 1 2 1 , paragraph 29; Joined Cases C-15/91 and C-108/91 Buckl v Commission [1992] ECR 1-6061, paragraph 25).

i7 Lastly, the Court has already recognized that, where an instrument contains limi- tations or derogations which are temporary {Zuckerfabrik Watenstedt, cited above, and Compagnie française commerciale et financière, cited above, paragraphs 12 to 15) or territorial in nature (Joined Cases 103/78 to 109/78 Société des Usines de Beauport v Council [1979] ECR 17, paragraphs 15 to 19), they form an integral part of the provisions as a whole within which they are found and, in the absence of any misuse of powers, are of the same general nature as those provisions.

is In the present case, there is no dispute as to Regulation N o 2343/90 being of gen- eral application, save as regards Article 1(3), and the regulation does indeed con- cern all Community air carriers, for whom it lays down new rules regarding access to the market and, in particular, the use of traffic rights.

i9 The provision under challenge suspends the application of those new rules to ser- vices to or from Gibraltar until the arrangements in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 come into operation. As the Court has already held in respect of the same provision contained in the aforesaid Directive 89/463, that suspension affects equally all air carriers wishing to operate a direct inter-regional air service between another Community airport and Gibraltar airport and, more generally, all those using the latter airport. It therefore applies to objectively defined situations (Case C-298/89 Government of Gibraltar v Council [1993] ECR 1-3605, paragraph 20).

21 Regulation N o 2343/90 justifies the suspension of its application to Gibraltar air- port by reference to the agreement in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987. As the Court has already pointed out in its aforesaid judgment in Case C-298/89 Government of Gibraltar v Council, paragraph 22, this constitutes a finding that there is an obstacle of an objective nature to the application of the regulation, having regard to its aims. In view of the differences between the King- dom of Spain and the United Kingdom, discussed at length by the applicant itself, concerning sovereignty over the territory on which Gibraltar airport is situated and the operational problems resulting from those differences, the development of air services between that airport and the other airports within the Community is conditional on the implementation of the cooperation arrangements agreed between those two States.

22 In those circumstances, Article 1 (3) of Regulation N o 2343/90 cannot be regarded as constituting a decision within the meaning of the second paragraph of Article 173 of the Treaty, but on the contrary is of the same general nature as that regu- lation.

23 It follows that the application is inadmissible and must therefore be dismissed, without there being any need to consider the other submissions made in support of the objection of inadmissibility.

Costs

24 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Gibraltar Development Corporation has been

1. The application is dismissed as inadmissible.

2. The applicant is ordered to pay the costs.

3. The Kingdom of Spain, the United Kingdom and the Commission, interven- ers, are ordered to pay their own costs.

Luxembourg, 12 July 1993.

J.-G. Giraud O. Due

Registrar President