August 2011: Newsletter FLO – AVIATION


FLASH NOTICE – European Case Law

Arthur Flieger, Attorney of Law Flieger Law Office bvba

With the cooperation of Stijn Brusseleers, Attorney of Law Flieger Law Office bvba


In this Flash newsletter some referral to 3 cases of European Case Law with an actual interest.

Our September issue will relate to Regulation 261/2004 of the European Parliament and the Council of February 11, 2004.( Passengers’ rights )


Appeal by Mitteldeutsche Flughafen AG, Flughafen Leipzig Halle GmbH against the judgment delivered by the General Court ( Chamber eight ) on March 24th, 2011,

In this matter the appellants contend that the Court would give final judgment in the matter and also uphold the action in Case T-455/08 in so far as it seeks annulment of the contested decision to the extent that the European Commission finds therein that the measure adopted by Germany providing capital contributions for the construction of a new southern runway and related airport infrastructure at Leipzig Halle Airport constitutes State aid for the purposes of Article 107(1) TFEU ( formerly Article 87(1) EC).

The appeal concerns the judgement by which the General Court of the European Union partially dismissed the appellants’ action for partial annulment of Commission Decision 2009/948/EC on measures by Germany to assist DHL and Leipzig Halle Airport.

This appeal is indeed limited, and does not challenge the operative part of the judgment by which the General Court partially annulled the contested decision. Only a part of the decision, § 4 is challenged, by which the General Court dismissed remainder of the action. Only the classification of the financing measures at issue as aid for the purposes of Article 107(1) TFEU ( formally Article 87 § 1 EC ) is challenged.

The appeal is based on the following main legal arguments:

– According to the appellants Flughafen Leipzig/Halle GmbH is not an undertaking within the meaning of Article 107(1) TFEU with regard to the infrastructure measures at issue and their financing. The construction of regional airport infrastructure does not constitute an economic activity. According to said parties the aid provisions are inapplicable to the present circumstances.

Parties also content that there is furthermore an infringement to the prohibition on retroactivity: the requirement of legal certainty and the protection of legitimate expectations. In the contested decision, the EU Commission, applied according to the appellants the communication on Community guidelines on financing of airports and start-up aid to airlines departing from regional airports, published on December 9th, 2005, retroactively to the infrastructure measures which had been decided upon November 4th, 2004.

The General Court finds that the 2005 guidelines were not applied retroactively and thereby upholds in due of the appellants a contradictory and substantively incorrect legal position created by the Commission.

The appellants also consider that the General Court fails to take account of the fact that the 1994 aviation guidelines, under which the State financing of airport infrastructure is regarded as a general measure and is therefore not subject to aid control, continued to apply. There are also some contestations in respect of the rules in respect the regulation on existing aid to the capital contribution of Regulation EC Number 659/1999 of March 22nd, 1999, and as well regulation of the division of powers under the TFEU. The issue which will also have to be considered by the Court is that due to the appellants the General Court infringes by its interpretation of the concept of undertaking as mentioned in Article 107(1) TFEU primary ( EU ) law, in that it subjects to aid control Member State measures which in fact are not subject to the law on aid. And as well there is a contestation of the fact that the General Court didn’t respect procedural rules.

No to await the decision of the court, however this all will have to be interpreted in the view of the rules about state aid law. We wait and see.


Questions referred for a preliminary ruling from the Landgericht Frankfurt am Main (Germany ) lodged on 28 March 2011 – Condor Flugdienst GmbH v Jürgen Dörschei

Condor Flugdienst GmbH v Jürgen Dörschel

Lodged on March 28th, 2011

1. Does a passenger have a right to payment of compensation under Article 7 of Regulation No 261/2004 in the case where the flight, following its departure according to schedule, is discontinued and the aircraft, before arriving at the airport of destination, returns to the airport of departure and subsequently takes off again with a delay which is relevant for payment of compensation?

2. Is there a discontinuance in the case where, after the aircraft doors have been closed, the journey is not continued? From what point is there a discontinuance of the start, rather than a delayed start?


Questions referred by Queen’s Bench Division ( Administrative Court ) to European Court for a preliminary ruling from a High Court of Justice – Tui Travel plc, British Airways plc, easy Jet Airline Co. Ltd International Air Transport Association, The Queen v Civil Aviation Authority

Are Articles 5-7 of Regulation (EC) No. 261/2004 to be interpreted as requiring the compensation provided for in Article 7 to be paid to passengers whose flights are subject to delay within the meaning of Article 6, and if so in what circumstances?

If question 1 is answered in the negative, are Articles 5-7 of Regulation (EC) No. 261/2004 invalid, in whole or in part, for breach of the principle of equal treatment?

If question 1 is answered in the affirmative, are Articles 5-7 of Regulation (EC) No. 261/2004 invalid, in whole or in part, for (a) inconsistency with the Montreal Convention; (b) breach of the principle of proportionality; and/or (c) breach of the principle of legal certainty?

If question 1 is answered in the affirmative and question 3 in the negative, what if any limits are to be placed upon the temporal effects of the Court’s ruling in this case?

If question 1 is answered in the negative, what if any effect is to be given to the decision of Sturgeon between 19 November 2009 and the date of the Court’s ruling in this case?


For further information and comment, please contact Arthur Flieger at, Website:, telephone: +32 3 238 77 66 – Fax: +32 3 216 18 44


Copyright A. Flieger


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