OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 25 January 2024 (1)
Case C‑622/22
European Commission
v
Malta (Aeronautical data link services)
(Failure of a Member State to fulfil its obligations – Air transport – Regulation (EC) No 29/2009 – Obligation to adopt the measures necessary to ensure that an air navigation service provider designated by Malta complies with Article 3(1) of that regulation – Air navigation service bodies – Provision and operation of data link services – Failure to justify delay)
1. The European Commission complains that Malta has failed to fulfil the obligations incumbent on it under Article 3(1) of Regulation (EC) No 29/2009, (2) in that Malta failed to adopt the measures necessary to ensure that the air traffic services (‘ATS’) (3) provider designated by that Member State has the capability to provide and operate the data link services defined in Annex II to that regulation.
2. Malta submits that unforeseeable circumstances existed which justify the delay in the deployment of the system and, therefore, it disputes the Commission’s claim.
I. Legal framework. Regulation No 29/2009
3. Article 3 (‘Data link services’) provides:
‘1. ATS providers shall ensure that ATS units providing air traffic services within the airspace referred to in Article 1(3) have the capability to provide and operate the data link services defined in Annex II.
…’
4. Pursuant to Article 15 (‘Entry into force and application’): (4)
‘This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall apply from 5 February 2018.
This Regulation shall be binding in its entirety and directly applicable in all Member States.’
5. Annex II defines the data link services referred to, inter alia, in Article 3.
II. Prior administrative procedure
6. On 11 October 2018, the Commission sent a letter to the Civil Aviation Directorate of Malta, expressing its concerns about the delay in the provision of data link services, as referred to in Regulation No 29/2009, and inviting Malta to accelerate the deployment of those services.
7. According to an update provided by SESAR, (5) in December 2019, the ATS service provider designated by Malta (6) was still not providing data link services.
8. By a letter of formal notice of 15 May 2020, the Commission invited Malta to submit observations on the alleged infringement of Article 3(1) of Regulation No 29/2009. According to the Commission, the infringement consisted of failure to provide and operate all the data link services defined in Annex II to that regulation for all operators flying in Maltese airspace that are equipped with a data link communication function, within the meaning of Article 6 of that regulation.
9. On 5 October 2020, Malta replied to the Commission’s letter of formal notice, explaining the difficulties encountered by its ATS provider in meeting the date of application of Regulation No 29/2009, in particular due to the need to replace the air traffic management system.
10. In that reply to the Commission’s letter of formal notice, Malta:
– Stated that the acquisition, installation and commissioning of the system had been completed in 2019 and that operability of the data link services was initially planned for February 2020, but that this had been suspended because of the COVID-19 pandemic.
– Explained that, in the event that it was possible for the contractor’s work to restart in 2020, the data link project would be given priority with a view to achieving full implementation in the first half of 2022.
11. In a further communication of 15 December 2020, Malta provided information about the most recent steps taken towards enabling the ATS providers to provide and operate the data link services and undertook to submit quarterly progress updates to the Commission.
12. On 18 February 2021, the Commission sent an additional letter of formal notice inviting Malta to submit observations on the alleged infringement of Article 4(3) TEU in conjunction with Article 3(1) of Regulation No 29/2009.
13. Malta replied on 18 March 2021, stating that:
– It had been necessary to renew the air traffic management system (completed in 2019) before the implementation of the data link services. Malta explained that the restrictions caused by the COVID-19 pandemic had hampered the work of the contractor responsible for data link services.
– Despite those restrictions, since January 2021, it had undertaken new work and would be able to comply with the requirements by June 2022 at the latest.
– Malta had been completely open and transparent with the Commission concerning progress in the application of Regulation No 29/2009, which showed that it had complied with the principle of sincere cooperation and satisfied the requirements laid down in Article 4(3) TEU.
14. On 15 July 2021, the Commission sent Malta a reasoned opinion, stating that, by failing to adopt the measures necessary to ensure that the designated ATS provider complied with Article 3(1) of Regulation No 29/2009, Malta had failed to fulfil the obligations incumbent on it under Article 4(3) TEU. In that reasoned opinion, the Commission gave Malta a period of two months, from the date of receipt, to comply with it.
15. Malta replied to the Commission’s reasoned opinion by letters of 20 September 2021, 25 November 2021 and 27 January 2022. In those letters, Malta recalled the main reasons for the delays which had occurred since 2017, outlined the progress made and confirmed the previously communicated date of compliance of June 2022.
16. In reply to a reminder from the Commission of 7 February 2022, Malta submitted seven updates of information, in which it indicated, essentially, that:
– It had delayed the date of compliance until 28 December 2022, due to the execution of an afforestation project earmarked for the installation of data link services equipment, global shortages in the supply of electronic components, unforeseen software upgrades and the rostering of air traffic controllers during the training phase.
– Initial training needed to be carried out, which was necessary to comply with Regulation No 29/2009 and would be completed by 30 September 2022 at the latest. Training would not be completed until 30 November 2023.
– Other milestones would be reached only in 2023 (interoperability tests and certain tasks relating to safety and security, quality and compliance).
III. Procedure before the Court of Justice
17. On 29 September 2022, the Commission brought an action for failure to fulfil obligations, pursuant to Article 258 TFEU. In that action, the Commission applied to the Court for a declaration that ‘by not taking the measures necessary to ensure that the ATS provider designated by it complies with Article 3(1) of Commission Regulation (EC) No 29/2009, Republic of Malta has failed to fulfil its obligations under Article 4(3) TEU in conjunction with Article 3(1) of Commission Regulation (EC) No 29/2009’. The Commission also claimed that the defendant should be ordered to pay the costs.
18. Malta lodged a defence against the Commission’s action on 15 December 2022.
19. The Commission lodged a reply on 25 January 2023 and Malta lodged a rejoinder on 8 March 2023.
20. The Court decided not to hold a hearing.
IV. The parties’ submissions in the proceedings before the Court of Justice
21. In its application, the Commission, after examining the events of the prior administrative procedure, submitted that the arguments put forward by Malta in the pre-litigation procedure could not be accepted as an explanation for the delay, those arguments being confined to internal difficulties concerning the implementation of projects, issues with procurement and the COVID-19 pandemic.
22. The Commission maintained that, in accordance with the case-law of the Court which it cited, (7) those circumstances are not valid reasons justifying non-compliance with EU law.
23. Malta contested the Commission’s action pleading, essentially, the difficulties which arose before and after the date of application (5 February 2018) set by Regulation No 29/2009:
– In 2013 it had to contend with the shortage of undertakings providing connectivity services, which forced it to attempt (unsuccessfully) to enter into a contract with SITA, one of the two operators in the duopoly on that market.
– In 2017 it attempted to move away from dependency on external undertakings by entering into a contract with the Italian undertaking Leonardo SpA and the Italian ATS provider, (8) which would enable it to act independently.
– While MATS was awaiting development of the project by Leonardo Spa, two unforeseeable events occurred: three lightning strikes hit Malta air traffic control (2 October 2017) and an air-conditioning pipe ruptured (9 June 2019) in the main operations room. Both incidents necessitated the diversion of attention and available resources to guarantee air traffic control services.
– In 2020, the COVID-19 pandemic also resulted in unavoidable delays to the project.
24. When it lodged its defence, Malta acknowledged that, at that time (15 December 2022), the project for the provision and operation of data link services was still not operational.
25. In its reply, the Commission states that none of the circumstances prior to 2018 pleaded by Malta was ‘unforeseeable’. ‘Pre-existing market failures’ were, precisely, ‘pre-existing’ and, therefore, known and ‘foreseeable’. The ‘generally recognised technical issues in the implementation of the Regulation’ were also known and foreseeable. The alleged force majeure circumstances pleaded (lightning strikes, the rupture of an air-conditioning pipe, the COVID-19 pandemic and delays due to the contractor) occurred after the date of application of Regulation No 29/2009 and, therefore, are irrelevant. Furthermore, the Commission complains that Malta has failed to provide evidence that some of those events actually occurred and to show that they affected the delay.
26. In its rejoinder, Malta submits a number of documents substantiating that the three lightning strikes occurred and that there was a rupture of an air-conditioning pipe and states that, as regards SITA’s refusal to reply to its requests for an offer, it is impossible to provide proof. Malta argues that the deployment of the service was particularly complicated in a region where access to data link services was non-existent until that time and that unforeseen difficulties arose in relation to the ENAV system.
V. Assessment
A. Preliminary point: obligation to provide data link services for air navigation
27. In accordance with recital 1 of Regulation No 29/2009, ‘observed and expected increases in air traffic levels within Europe require parallel increases in air traffic control capacity. This leads to a demand for operational improvements, in particular to improve efficiency of communications between controllers and pilots. Voice communications channels are becoming progressively congested and should be supplemented by air-ground data link communications’.
28. That stipulation is given legislative expression in Article 3(1) of Regulation No 29/2009, pursuant to which ‘ATS providers shall ensure that ATS units providing air traffic services within the airspace referred to in Article 1(3) have the capability to provide and operate the data link services defined in Annex II’.
29. The date of application of Regulation No 29/2009 is 5 February 2018. That date replaces the date initially laid down (7 February 2013) in the original version of the regulation. (9)
B. Failure by Malta to fulfil the obligations laid down by Article 3(1) of Regulation No 29/2009
30. It is common knowledge that the procedure laid down in Article 258 TFEU is based on an objective finding that a Member State has failed to fulfil its obligations under the Treaties or secondary legislation.
31. The Maltese Government has not disputed the failure to fulfil obligations, in objective terms, which the Commission attributes to it, either in the prior administrative procedure or before the Court.
32. However, that Member State argues that the difficulties it encountered in relation to the provision and operation of the data link services should be taken into account.
33. In the light of the evidence adduced, it is possible to identify three periods related to the failure to fulfil obligations complained of, which continued (and is still continuing) over a period of time:
– Initial period. Between the publication of Regulation No 29/2009 and 5 February 2018, the date on which application of the regulation commenced. At the end of that period, Malta had not fulfilled the obligations laid down by that regulation.
– Intermediate period. Between 5 February 2018 and 15 September 2021, the expiry date of the two-month period granted by the Commission to Malta for compliance with the reasoned opinion sent on 15 July 2021. On 15 September 2021, Malta had still not fulfilled the obligations laid down by Regulation No 29/2009.
– Final period. From 15 September 2021 to the time of closure of the written procedure in this action before the Court, Malta had still not implemented the system laid down in Article 3(1) of Regulation No 29/2009.
34. Since it is unable to deny the objective reality of the infringement complained of, the Maltese Government attempts to justify its delay by putting forward a number of grounds which, it claims, explain the failure to bring its air navigation services into line with Article 3(1) of Regulation No 29/2009.
35. In accordance with settled case-law, ‘the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, the Court being unable to take account of any subsequent changes’. (10)
36. Even though the Commission appears to place the emphasis on the fact that the circumstances pleaded by Malta (which allegedly explain its failure to fulfil its obligations) did not justify that failure on the date of application of Regulation No 29/2009 (5 February 2018), the Commission’s pleadings also claim, at least implicitly, that, on the expiry date of the period set in the reasoned opinion (15 September 2021), there were no valid grounds justifying the failure to implement Article 3(1) of Regulation No 29/2009.
37. Indeed, Malta has acknowledged that, on the expiry date of the Commission’s reasoned opinion, the failure to fulfil the obligation to provide and operate the data link service required by Regulation No 29/2009 was still ongoing.
38. I shall examine below the grounds put forward by Malta as justification for the infringement, which relate to each of the three periods referred to above, and I shall state my assessment of those grounds. That assessment will proceed on the basis that, where the Commission has established an objective infringement of a Member State’s obligations under EU law, it is for the Member State that has committed that infringement to provide evidence of the relevant grounds for justification.
C. Grounds pleaded by Malta as justification for the failure to fulfil obligations and assessment of those grounds
1. Initial period (until 5 February 2018)
39. The Maltese Government puts forward the following grounds for its delay in the fulfilment of its obligations during that period:
– The difficulties faced by MATS were due to market failures resulting from a duopoly structure in the provision of ATN (11) connectivity. In 2013, it contacted the operator SITA, an undertaking which, however, did not submit any offer, thereby depriving Malta of the means of fulfilling its obligations, which was completely beyond its control.
– On 2 October 2017, three lightning strikes hit the air traffic control centre and caused a power cut.
– In 2017, MATS became aware that ENAV, in its capacity as the Italian ATS provider, had found an alternative solution using the undertaking Leonardo SpA to provide services without depending on third parties. On 18 December 2017, MATS signed a contract with ENAV and Leonardo Spa. However, Eurocontrol communicated to MATS a study relating to ATN routers (like that which Malta had) which jeopardised the ATN network; this required it to return to the initial solution, which depended on external providers. That situation caused delays in the deployment of the data link service.
40. Although I believe it is unnecessary to examine in detail the search for a justification based on events prior to 5 February 2018, if 15 September 2021 is accepted as the key date for the purposes of assessment of the failure to fulfil obligations, I can see no reason not to examine those events.
41. The difficulties related to the engagement of an external operator in 2013, apart from the fact that they do not explain the delay in 2018, fall within the scope of technical or structural difficulties which the Court has held to be irrelevant in actions of this kind. (12)
42. The same applies to the communication attributed to Eurocontrol, identified in Annex 3 to the defence. That annex is, in fact, a document entitled ‘White Paper on ATN A/G Router Proliferation’, published on 10 March 2009, which was, or could have been, available to the Maltese authorities since then. In any case, Malta is not entitled to plead that it was unaware of the non-viability of the technical solutions which it adopted.
43. As regards the lightning strikes at Malta airport (documentary evidence of which was adduced in the rejoinder), it is impossible to see what effect that specific event, which affected the electricity supply, could have had on Malta’s continued failure to fulfil its obligations regarding deployment of the data link service.
2. Intermediate period (from 5 February 2018 to 15 September 2021)
44. Malta pleads the following facts which it claims had a negative effect on the failure to fulfil its obligations during this period:
– On 9 June 2019, an air-conditioning pipe ruptured at MATS’ headquarters and the technical team had to divert its attention and resources to deal with that unforeseen problem.
– The COVID-19 pandemic caused other unavoidable delays: (i) Leonardo SpA claimed force majeure due to the imposition of travel bans in response to the pandemic and was unable to progress with the data link service project between March and September 2020, which caused further delays to the implementation of the project; (ii) MATS had to apply a number of safety measures to mitigate the health risks brought about by the pandemic, inter alia by reducing staff on duty, conducting fumigation procedures, rotating staff to reduce the risk of infection, and adopting all possible safeguards to ensure the provision of a safe and secure service to the public; (iii) due to the severe restrictions imposed as a result of the pandemic, there was a pressing need to create an emergency operations room and MATS devoted the majority of its efforts to that project, to which, for practical and safety and security reasons, it gave priority.
45. I do not find those arguments convincing either as justification for the failure to fulfil obligations complained of.
46. As regards the rupture of a pipe in the air-conditioning system, suffice it to read Annex R.6 to Malta’s rejoinder, which states that the incident lasted approximately 25 minutes, at the end of which it was resolved. In any event, that rupture cannot be categorised as force majeure since it does not concern an abnormal and unforeseeable situation that is unconnected with the specific activity.
47. In connection with the effects of the COVID-19 pandemic, the Maltese Government acknowledges that its dealings with Leonardo SpA were affected for only six months, without there being any evidence that any further extensions were caused. Nor does Malta explain sufficiently what specific impact the precautionary measures adopted on health grounds could have had on the deployment of the data link system. The arguments put forward by Malta appear, rather, to be an account of internal organisational difficulties (scarcity of resources) which led it to prioritise other areas of its business.
48. In any event, Malta has failed to establish, with respect to that period too, that it was absolutely impossible for it to fulfil its obligations. (13)
3. Final period (from 15 September 2021)
49. The Maltese Government acknowledges in its final pleading (rejoinder of 8 March 2023) that, although MATS granted the project utmost priority, deployment of the data link services has not been completed. The Maltese Government states that the ATS operator has formed a new management team, that the project is in progress and that it has reached a very high readiness level. The Maltese Government states that it will continue to do everything possible to fulfil its obligations under Regulation No 29/2009, while also fully undertaking to implement the service safely and securely.
50. Although events occurring after the expiry of the period laid down in the reasoned opinion (15 September 2021) cannot be taken into account, (14) I believe that it is impossible to ignore the reality: the Maltese Government admits itself that the data link service was still not implemented in 2023, while the difficulties cited for that delay continue to be (as they were in previous periods) technical and structural in nature, and attributable to that Member State.
51. In short, it is my view that the Maltese Government has not succeeded in establishing that the facts relied on to explain the delay in fulfilment of its obligations under Article 3(1) of Regulation No 29/2009 are capable of justifying that delay.
VI. Conclusion
52. In the light of the foregoing considerations, I propose that the Court of Justice should uphold the Commission’s action and:
– Declare that the Republic of Malta has failed to fulfil the obligations incumbent on it under Article 3(1) of Commission Regulation (EC) No 29/2009 of 16 January 2009 laying down requirements on data link services for the single European sky;
– Order Malta to pay the costs.