C-389/96

2. Aher-Waggon brought an action before the competent German administrative courts but was unsuccessful both at first instance and on appeal. It then applied to the Bundes­ 1. The applicant for review on a point of law verwaltungsgericht for review on a point of in the main proceedings, the company Aher- law, contending that the ordinary adminis­ Waggon GmbH (hereinafter 'Aher- trative courts had wrongly rejected its claim Waggon'), is the owner of a propeller-driven Piper PA 28-140 aeroplane which it pur­ that the competent German administrative chased used in Denmark. That aeroplane had authorities be required to issue a preliminary been registered in Denmark since 2 August decision allowing the aircraft to be registered 1974. In July 1992 Aher-Waggon applied to in Germany notwithstanding its operating the competent German authority, the noise. It submitted in that regard that the refusal by the German authorities to register the aircraft because it exceeded the national noise emission limits infringed Community * Original language: Greek. 1 — OJ 1980 L 18, p. 26. law. It pointed out that the registration of 2 — OJ 1983 L 117, p. 15. aircraft of the same type already on the

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German register remained valid even though drawn on the basis of the State of registry, they exceed the noise limits in force today in contrary to Article 30 of the Treaty. that country.

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AHER-WAGGON ν GERMANY

IV — Applicable Community law least equal to the applicable standards specified in Part II, Chapters 2, 3, 5 or 6 of Volume I of Annex 16/5.

5. Article 30 of the Treaty states:

Article 2

'Quantitative restrictions on imports and all measures having equivalent effect shall ... be prohibited between Member States.' 1. The documents attesting noise certifica­ tion within the meaning of Articles 1, 3, 4 and 5 may take the form of a separate noise certificate or a suitable statement contained in another document approved by the State of registry and required by that State to be carried in the aeroplane ... 6. Articles 1, 2 and 3 of Directive 80/501, as amended by Directive 83/206, provide:

V — My views

9. Also, as all the parties to the proceedings correctly state, the provisions of the Direc­ tive which are at issue merely lay down 7. Although the question referred for a pre­ minimum requirements and allow the Mem­ liminary ruling focuses on the interpretation ber States to adopt stricter limits in order to of Article 30 of the E C Treaty (B), in order combat noise pollution. Germany therefore to answer it it is necessary to examine the had the power — which it lawfully exercised relevant provisions of secondary Commu­ — to introduce lower engine noise limits as a nity legislation which lay down noise limits condition for the registration of aircraft and for subsonic aircraft 5 (A). the grant of noise certification. In addition, the fact that the aeroplane in question met the minimum Community requirements is 4 — Emphasis added. not sufficient to found a right to registration 5 — The way in which the fundamental principle laid down in Article 30 of the EC Treaty will be interpreted in each case is directly bound up with the specific characteristics of the Community legislation governing the activity at issue. Before the question of the application of Article 30 is raised, 6 — That remark is not without significance. The Court has it is necessary to examine whether there are specific rules repeatedly had regard to that teleologicai criterion when which bind the Member States. See the classic judgment in asked to assess whether Community rules are mandatory. 'Cassis de Dijon' (Case 120/78 Rewe ν Bundesmonopolver­ See, for example, Case 278/85 Commission ν Denmark waltung für Branntwein [1979] ECR 649, paragraph 8). [1987] ECR 4069, paragraphs 16 and 22.

in Germany, since it exceeded the lawfully may not dispute the accuracy of the contents adopted German noise limits. of a certificate issued by another Member State. It does not mean, however, that the Member States are also obliged to acknowl­ edge that those certificates are substantively equivalent to the certificates which they issue themselves, nor that they give rise in national law to the same legal effects as domestic cer­ tificates. 10. It must also be noted that the Directive governs first registration of aircraft in the Member States. In particular, Article 3(1) provides that each Member State is to adopt the necessary measures so that propeller- driven aircraft such as that of Aher-Waggon are registered in their territory for the first time only when it is certified that they at 12. If, moreover, it were accepted that an air­ least meet the minimum requirements laid craft which is already registered in one down by the Directive. The restriction of the Member State and meets the minimum Com­ field of application to the first registration of munity requirements may be registered in aircraft has the following consequences. another Member State even though it does not satisfy the stricter national requirements in that State, the power to adopt stricter national noise limits which the Directive clearly grants would effectively be removed. Specifically, a person wishing to import into Germany an aircraft which does not meet 11. First, it follows from that fact, in con­ the German requirements could register it in junction with the fact that the Directive per­ another Member State (which sets higher mits the introduction of stricter national noise limits) and subsequently rely on that noise limits, that the Community legislature registration in order to obtain a German reg­ does not wish to grant a vested right or even istration. a legal guarantee for aircraft which have already been registered and have correspond­ ing noise certification in one Member State and are the subject of an application for reg­ istration lodged in another Member State. That is to say, Community law does not place in another, more favourable, category those aircraft which meet the minimum 13. Secondly, by restricting the scope of the Community requirements, are already regis­ Directive solely to cases of first registration tered in one Member State and are to be reg­ of an aircraft in the register of a Member istered in another Member State. It is true State, the Community legislature indirectly that Article 2(2) of the Directive establishes allows the Member States to retain the regis­ mutual recognition of noise certificates tration of aircraft which do not meet the between the Member States, but, as the minimum requirements of the Directive or Commission correctly states, that recogni­ stricter national requirements subsequently tion simply means that one Member State adopted in accordance with the Directive.

The restriction of Community harmonisa­ requirements that it may result in (notional) tion solely to those aircraft which are regis­ less favourable treatment of certain products tered for the first time in a national register or in the preservation of different conditions is, as the Commission points out, based on of competition. As the Court held in Galla- the following philosophy: the Community her, 'those consequences are attributable to legislature wanted to limit the noise emis­ the degree of harmonisation sought by the sions of new aircraft presented for registra­ provisions in question, which lay down tion in a national register after the adoption minimum requirements'. 7 of the Directive because, first, such aircraft constitute the majority of the fleet in each State and, secondly, the aircraft manufactur­ ers were forced in that way to promote tech­ nology to combat noise pollution. The Com­ munity legislature did not intend, on the other hand, to require the Member States to 16. It is clear from the foregoing that, under modernise their existing fleets, by eliminat­ the legal regime introduced by the directives ing from the registers aircraft which exceed at issue, a Member State may refuse to grant the lower noise limits laid down by the a noise certificate and, as a consequence, to Directive. register an aircraft even though the aircraft has been lawfully registered in another Member State and aircraft of the same type already registered in the first Member State are treated as continuing to satisfy the regis­ tration conditions. Accordingly, the second­ ary Community legislation in force cannot 14. Accordingly, an aircraft which does not form a legal basis for the applications made meet the German requirements and is pre­ by Aher-Waggon to the German authorities. sented for registration after the Directive entered into force is in fact treated differ­ ently from an aircraft which is identical but was already registered in Germany before the intervention of the Community legisla­ ture. That difference in treatment was none the less intended by the authors of the Β — Interpretation of Article 30 of the EC Directive who, while wishing to stop the Treaty Member States from tolerating aircraft which generate noise exceeding specified minimum limits, did not wish to reduce the noise pol­ lution existing within each State before the Directive was adopted.

20. It should in any event be noted that it cannot be concluded from the facts of this case that noise limits such as those enacted in the German legislation at issue constitute a 18. Moreover, the principle of mutual recog­ measure which is disproportionate to the nition of national laws, on which the Court objective being pursued, namely the reduc­ relies when interpreting Article 30 of the tion of noise pollution. I would add that the Treaty, presupposes that those national laws Court has held that the protection of the have the same content and quality. Since the environment amounts to a fundamental Directive itself permits stricter noise limits to national objective which may also limit the

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application of the prohibitions in Article 30 ment put forward by Germany that, even if of the EC Treaty. 9 it were to be found that the German legisla- tion at issue was caught by the prohibitions in Article 30 of the EC Treaty, those national rules are justified by the need to protect 21. Furthermore, I do not consider it neces- human health as provided for in Article 36 of sary to examine in greater detail the argu- the EC Treaty.

Conclusion

22. In view of the foregoing, I propose that the Court should answer the question referred to it for a preliminary ruling as follows: