C-92/01

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OPINION OF MR ALBER — CASE C-92/01

Article 27(21) of Law 2668/1998: 4 I I I— Facts

5. The claimants in the main proceedings paid an airport modernisation and deve- lopment tax in the sum of GRD 6 900 (equivalent to approximately EUR 20) for a flight from Heraklion to Marseilles on '7. Every passenger over 12 years of age 10 August 1998. He seeks a refund from departing from a Greek airport (whether a the Greek State of half of this sum. State, municipal, community or private airport) for a domestic or international destination shall be charged an airport modernisation and development tax, as follows:

6. The national court found that passengers receive no consideration for the tax which they are charged. Rather, it is a tax which is collected by the airlines and transferred to the Bank of Greece. It is used for carrying out works and creating airport facilities, and for the modernisation thereof. (a) for passengers whose final destination is more than 100 kilometres, but not more than 750 kilometres, from their airport of departure, a tax in drachmas of an amount equal to ECU 10;

7. The national court points out that the doubled tax affects above all international flights. No domestic flight covers more than 750 kilometres, and only one inter- national flight, namely Corfu to Rome, falls below the threshold of 750 kilometres.

'Are Articles 8a (after amendment, Article 18 EC) and 59 (after amendment, Article 49 EC) of the EC Treaty and Article 3(1) of Council Regulation No 2408/92 to be interpreted as pro- hibiting a Member State from imposing a differentiated fiscal charge on domestic and 9. It also follows from the order for intra-Community flights with the direct reference that the claimant in the main result that an amount of tax is charged on proceedings considers the Greek legislation intra-Community flights which is double to be in breach of Article 18 EC, according that applicable to flights within the to which every citizen has the right to free Member State?' movement and residence in the territory of Member States, and of Article 49 EC, which prohibits any restriction of the free- dom to provide services, since that legis- lation gives rise to a disguised discrimi- nation against international, and thus also intra-Community flights. Further, the claimant submits that the legislation in question infringes the provisions of Council V — Observations of the parties Regulation No 2408/92, Article 3 of which forms the basis of a general freedom of access to intra-Community transport, including internal transport of a Member State, for the benefit of Community air carriers. He relies, among other, on the 11. The claimant in the main proceedings judgment in Commission v France.5 lodged written observations at the Court of Finally, he also pleads breach of the Justice on 5 July 2001. The time allowed prohibition on discrimination. for this had, however, already expired on 29 June, and the written proceedings were concluded on 3 July. The observations can 5 — Case C-381/93 Commission v France [1994] ECR I-5145. no longer, therefore, be taken into account.

14. The Italian Government contends that 17. Neither is the provision incompatible the Greek legislation is compatible with with Article 3 of Regulation No 2408/92. Community law. It is indeed the case that There is no basis for suggesting that international flights are subject to a tax imposition of the tax is a prerequisite for that is double that imposed on domestic obtaining authorisation to offer flights on flights. But the distinction rests on the intra-Community routes out of Greece.

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STYLIANAKIS

6 — The Commission cited the judgment in Commission v 22. The aim of Regulation N o 2408/92 is France (cited in footnote 5). to establish the conditions for application

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O P I N I O N OF MR ALBER — CASE C-92/01

of the principle of the freedom to provide and 750 km, and EUR 20 for flights of over air transport services. 7 The regulation is to 750 km. The national court found that all be interpreted in the light of Article 49 EC domestic routes fall in the category of up to as construed in case-law. 8 750 km, and all intra-Community routes, with the exception of the Corfu-Rome route, fall in the second category. The tax imposed for the equivalent domestic service amounts to half of the tax imposed in respect of intra-Community flights. Con- sequently, it may be concluded that the Greek provision at issue gives rise to a restriction on the freedom to provide air transport services which is protected by Article 3(1) of Regulation No 2408/92 and 23. According to case-law, Article 49 EC is by Article 49 EC. inconsistent with national rules which, without any objective justification, restrict a service provider's ability to exercise that freedom. It also precludes the application of national rules which make the provision of services between Member States more onerous than the provision of services 25. Merely as a supplementary point, it entirely within a Member State. 9 Such an may be noted that, according to the case- impediment arises, for example, where a law cited above, and contrary to the cross-border service is more expensive than position taken by the Italian Government comparable domestic services. 10 in these proceedings, what matters is not whether the measure constitutes discrimi- nation on grounds of nationality. It is sufficient that the cross-border intra-Com- munity service is made more expensive than the comparable purely domestic ser- vice. Article 49 EC lays down a prohibition on restriction, and not purely a prohibition on discrimination.

services which has been identified may be 29. The Greek Government states that the justified. The freedom to provide services income generated by the imposition of the may, as a fundamental principle of the taxes is applied for the benefit of airport Treaty, only be restricted by rules which development and modernisation. Two are justified for overriding reasons relating thirds of the taxes imposed go to the to the public interest and which apply to all airport at which they were levied, and one persons or undertakings operating in the third is available to the Greek Government territory of the host Member State. Fur- for distribution among all Greek airports. thermore, the national provision in issue is However, as the Commission aptly points only justified if it is suitable for ensuring out, according to case-law, economic aims that its objective is realised, and does not do not, as a matter of principle, constitute go beyond what is necessary for that public-policy grounds within the meaning purpose. 11 of Article 46 EC which could justify different treatment of domestic and cross- border services. 12 The modernisation and development of Greek airports could just as well be financed by a tax regime under which domestic and intra-Community flights are treated equally.

27. There is no indication that the Greek provisions result in discrimination against service providers on the basis of their nationality. The distinction arises solely from the distance of the flight route. To this 30. As possible grounds for justification, extent, the first of the conditions referred to the Commission mentions the statement of above, that the restriction should apply to the YPA that the number of passengers all persons and undertakings, is satisfied. clearing customs per hour is greater for domestic flights than for cross-border flights.

32. Instead, the conclusion to be drawn is that the passenger receives nothing directly in return for the tax imposed on him. The tax is really used for the general develop- ment and modernisation of Greek airports. The national court has found in this respect that the tax is one for which nothing is given in return. 36. This question would appear to be redundant in the light of current case-law on the relationship of Article 18 EC to other non-discrimination provisions of the Treaty. In its judgment in Skanavi and 33. As far as the obligation of the Greek Chryssanthakopoulos, the Court held that Government towards the company promot- Article 18 EC, in which the right of every ing Spáta airport is concerned, reference citizen of the Union to move and reside may be made to the arguments set out freely within the territory of Member States above. Economic considerations are not is laid down in general terms, finds specific suitable justification for differentiated tax expression in Article 43 EC. In so far as the burdens. facts fall within one of the more specific provisions of the Treaty, it is not necessary to determine the interpretation of Article 18 EC. 13 Since in this case, as mentioned above, Article 49 EC applies to the facts of this case, no further comment on Article 18 EC is called for. 34. As a provisional conclusion it may accordingly be said that the Greek provi- sion in question is incompatible with the 13 — Case C-193/94 Skanavi and Chryssanthakopoulos [1996] principle of freedom to provide services ECR I-929, paragraph 22. Similarly, the Opinion of within the meaning of Article 49 EC and Advocate General Tizzano in Case C-100/01 Oteiza Olazabal [2002] ECR I-10981, paragraph 18, on the Article 3(1) of Regulation No 2408/92. relationship between Articles 18 and 39.

38. The area of application of Article 18 EC could at most be affected if the provision were deemed to constitute a right to move and reside freely within the whole of the Union, and thus also between Member States. 14 In this respect, it must first be observed that the disputed tax 40. A possible incompatibility of the tax regime does not preclude the right to cross provision with Article 18 EC is, however, a border into another Member State. It contradicted above all by the following continues to be possible to leave Greece consideration. That article is a particular otherwise than by air. It does not, however, expression of the general prohibition of appear that Article 18 EC guarantees an discrimination enshrined in Article 12 unlimited right to move from one Member EC. 15 The tax provision in issue does not, State to another by any particular means of however, distinguish according t o the transport. nationality of the passenger or to that of the carrier. The only criterion for determin- ing the payment due is the distance flown. The tax is levied without distinction in respect of all flights over 750 km. This, however, is an objective criterion whose application does not lead to discrimination. It must therefore be c o n c l u d e d that 39. Even if one focuses on the mode of Article 18 EC does not preclude the appli- transport specifically in issue, however, it cation of the disputed tax provision.

14 — See the Opinion of Advocate General La Pergola of 1 July 15 — Case C-85/96 Martinez Sala [19981 ECR I-2691, para- 1997 in Case C-85/96 Martinez Sala [1998] ECR I-2691, graphs 62 to 63; Case C-184/99 Grzelczyk [2001] ECR I-2694, paragraph 18. I-6193, paragraphs 30 to 32.