C-389/96

AHER-WAGGON ν GERMANY

J U D G M E N T O F T H E C O U R T (Fifth Chamber) 14 July 1998 *

In Case C-389/96,

R E F E R E N C E to the Court under Article 177 of the E C Treaty by the Bundes­ verwaltungsgericht for a preliminary ruling in the proceedings pending before that court between

Aher-Waggon GmbH

and

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JUDGMENT OF 14. 7. 1998 — CASE C-389/96

after considering the written observations submitted on behalf of:

— Aher-Waggon G m b H , by Michael and Birgit Schroeder, Rechtsanwälte, Cologne,

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

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

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.

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AHER-WAGGON ν GERMANY

2 That question was raised in proceedings between Aher-Waggon G m b H ('Aher- Waggon') and the Luftfahrt-Bundesamt (Federal Office of Aviation; 'the Bunde­ samt') 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 Direc­ tive 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 Direc­ tive 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 Conven­ tion on International Civil Aviation, signed in Chicago in 1944 ('the Convention').

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

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 Commu- nity 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 regis- tration.

1 1 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

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1 4 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

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JUDGMENT OF 14. 7. 1998 — CASE C-389/96

upon compliance with stricter noise standards than those laid down by the Direc­ tive, 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 ν France [1974] E C R 359, paragraph 31, and Joined Cases 209/84 to 213/84 Ministère Public ν Asjes and Others [1986] E C R 1425, paragraphs 44 and 45).

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 restric­ tive of such trade (Joined Cases C-34/95, C-35/95 and C-36/95 KO ν De Agostini and TV-Shop [1997] E C R 1-3843, paragraph 45, and Case C-189/95 Franzén [1997] E C R I-5909, paragraph 75).

21 As regards the imposition of stricter standards than those laid down in the Direc- tive, suffice it to state that, as the German Government has explained, limiting noise emissions from aircraft is the most effective and convenient means of com- bating the noise pollution which they generate. Without extremely costly invest- ment, 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 air- craft, new or used, irrespective of their origin, and does not prevent aircraft regis- tered in another Member State from being used in Germany.

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23 As regards, more particularly, the exemption from those stricter standards for air- craft registered in the Member State in question before the Directive was imple- mented, those aircraft must, as the German Government has explained, also com- ply with the stricter noise standards when they undergo technical modification, even if it has no bearing on noise emissions, or when they are temporarily with- drawn from service. Furthermore, their number can be determined by the German authorities.

27 The costs incurred by the German and Danish Governments and by the Commis­ sion, 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.

O n those grounds,

T H E C O U R T (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 stan­ dards 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.

Gulmann Wathelet Moitinho de Almeida