JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
11 December 2014 (*)
(Civil aviation — Application for approval of flight conditions for a Robinson R66 helicopter — Rejection by EASA — Actions for annulment — Scope of review by the Board of Appeal — Scope of review by the General Court — Actions for failure to act — Non-contractual liability)
In Case T‑102/13,
Heli-Flight GmbH & Co. KG, established in Reichelsheim (Germany), represented by T. Kittner, lawyer,
applicant,
v
European Aviation Safety Agency (EASA), represented by T. Masing and C. Eckart, lawyers,
defendant,
APPLICATION for (1) annulment of EASA’s decision of 13 January 2012 rejecting the applicant’s application for approval of flight conditions for a Robinson R66 helicopter (serial number 0034), (2) a declaration of failure to act in relation to EASA’s handling of the applicant’s applications of 11 July 2011 and 10 January 2012 in respect of the said helicopter and (3) a declaration that EASA should compensate the applicant for the loss the applicant claims to have suffered as a result of that refusal and that alleged failure to act.
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias, President, M. Kancheva and C. Wetter (Rapporteur), Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 10 July 2014,
gives the following
Judgment
Background to the dispute
1 In July 2010, Robinson Helicopter Company Inc. filed an application with the European Aviation Safety Agency (EASA) for a type-certificate for the Robinson R66 helicopter.
2 The applicant, Heli-Flight GmbH & Co. KG, is a distributor in Germany of helicopters manufactured by Robinson Helicopter Company, from which it acquired a Robinson R66 helicopter (serial number 0034) in 2011 for USD 771 335. In order to finance that purchase, the applicant took out a leasing and hire purchase agreement on 16 May and 1 June 2011. The latter agreement gave rise to monthly repayments of EUR 4 538.37 on the part of the applicant.
3 In order to be able to market the helicopter in Germany, the applicant lodged an application with EASA on 11 July 2011 for approval of flight conditions for the period until end of 2011 with a view to applying to the national authorities for a permit to fly.
4 EASA issued a decision on 13 July 2011 refusing the application on the grounds that (1) the type-certificate application was still being examined and (2) accordingly, EASA was not in a position to carry out the positive evaluation sought by the applicant without undertaking a thorough analysis, which would only duplicate that carried out as part of the type-certificate process.
5 On 10 January 2012, the applicant made a further application in respect of the period from 15 January 2012 to 15 January 2013 on EASA Form 37, from which it appears that the flights in respect of which the application was made fell into the categories ‘flying the aircraft for customer acceptance; market survey, including customer’s crew training; exhibition and airshow; flying the aircraft to a location where maintenance or airworthiness review are to be performed, or to a place of storage’.
6 By a decision of 13 January 2012 (‘the initial decision’), EASA again rejected the applicant’s application, stating that technical examination of the Robinson R66 helicopter was still ongoing and, therefore, it was not possible to issue approval of flight conditions. EASA added that it was unable to supply third parties with details of ongoing type-certificate procedures.
7 On 17 January 2012, the applicant lodged an appeal with EASA against the initial decision, under Articles 44 to 49 of Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC (OJ 2008 L 79, p. 1), as amended.
8 The appeal, received on 18 January 2012 by the registry of EASA’s Board of Appeal (‘the Board of Appeal’), was submitted to the Executive Director of EASA for interlocutory revision in accordance with Article 47(1) of Regulation No 216/2008, as amended.
9 By a decision of 21 February 2012, the Executive Director held the appeal to be admissible but unfounded. He found that there was therefore no need to rectify the initial decision. He also stated that, in EASA’s view, there were no circumstances justifying a suspension of the said decision.
10 The case was therefore remitted to the Board of Appeal, in accordance with Article 47(2) of Regulation No 216/2008, as amended.
11 By a decision of 17 December 2012 (‘the Board of Appeal decision’), notified to the applicant on 27 December 2012, the Board of Appeal held the appeal to be admissible but, finding that the applicant’s grounds had been introduced ‘at a very late stage of the appeal procedure’ (paragraph 56 of the Board of Appeal decision), proceeded to dismiss it as unfounded.
12 The Board of Appeal started by reiterating that approval of flight conditions could be issued only if EASA was satisfied that the aircraft was capable of safe flight, and that it was for the party applying for approval to prove that capability. In matters of complex technical assessments, EASA also pointed out that it could employ discretion in making its assessment, the aim of which had to be aviation safety directly linked to the protection of human life (paragraphs 58, 62 and 63 of the Board of Appeal decision).
13 While conceding that it might appear strange to the applicant that the same model of helicopter should possess a type-certificate from the FAA (Federal Aviation Administration, in the USA) but not obtain one from EASA, the Board of Appeal pointed out, first, that this was not a determining factor in the present proceedings since an assessment by the FAA did not necessarily lead to the same assessment by EASA (paragraph 67 of the Board of Appeal decision) and, secondly, that the FAA was itself aware that certain standards had not been complied with since it granted an exemption in relation to the helicopter’s hydraulic system (paragraph 68 of the Board of Appeal decision).
14 Next, the Board of Appeal noted that, just because some helicopters of this type were already in use in some Member States, that did not lead to a finding that EASA was bound by the approval of national authorities that had agreed to the use of the aircraft in question (paragraphs 70 to 73 of the Board of Appeal decision). The Board said that the applicant’s case was not helped by either the submissions concerning the type-certification of the Robinson R44 helicopter (paragraph 74 of the Board of Appeal decision) or those concerning the N-Registration or the SAFA (Safety Assessment of Foreign Aircraft) Programme (paragraphs 75 to 77 of the Board of Appeal decision).
15 Finally, while acknowledging that the applicant was correct to draw a distinction between the type-certificate procedure and the procedure for approval of flight conditions, the Board of Appeal held that this did not prevent safety concerns that had come to light during the former procedure from being used as a ground for refusal in the context of the second procedure, in view of EASA’s duty to ensure aviation safety (paragraphs 80 to 84 of the Board of Appeal decision). In addition, according to the Board of Appeal, the information and technical details provided by EASA were complete and fulfilled the obligation to state reasons (paragraphs 87 and 88 of the Board of Appeal decision) and were also sufficient in law to substantiate EASA’s refusal without any need for an inspection in this regard (paragraphs 90 and 91 of the Board of Appeal decision).
Procedure and forms of order sought by the parties
16 By application lodged at the Registry of the General Court on 14 February 2013, the applicant brought the present action.
17 EASA lodged its defence on 21 May 2013.
18 The applicant lodged its reply on 19 July 2013 and the rejoinder was received by the Registry of the General Court on 9 September 2013.
19 The applicant claims that the Court should:
– annul the initial decision;
– declare a failure to act on the part of EASA in respect of the way it handled the applicant’s applications of 11 July 2011 and 10 January 2012 for the Robinson R66 helicopter;
– declare that EASA must compensate the applicant for loss the applicant claims to have suffered as a result of the initial decision and of the failure to act;
– order EASA to pay the costs.
20 EASA contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
21 Examination of the application reveals that it comprises an action for annulment, an action for failure to act and an action for damages. The Court considers it appropriate to rule first on the action for annulment.
The action for annulment
Admissibility and the subject-matter of the action for annulment
22 It should be noted that, in its application, the applicant brings its action against the initial decision. EASA submits a plea of non-admissibility in this respect, saying that the Court would only be able to hear an action brought against the Board of Appeal decision.
23 In order to determine whether the applicant may bring an action against the initial decision, it is necessary to refer to Regulation No 216/2008, as amended.
24 First, under Recital 26 of that regulation, it is necessary to ensure that ‘decisions of the Executive Director can be subject to appeal to a specialised Board of Appeal, whose decisions are, in turn, open to action before the Court of Justice’. Secondly, under Article 49 of Regulation No 216/2008, as amended, the Board of Appeal ‘may exercise any power which lies within the competence of [EASA] or may remit the case to the competent body of [EASA]’. It may deal with a decision of the Executive Director of EASA, who himself takes interlocutory revision decisions pursuant to Article 47 of that regulation. Thirdly, Article 50(2) of the same regulation provides that ‘[a]ctions for the annulment of decisions of [EASA] taken pursuant to Articles 20, 21, 22, 22a, 22b, 23, 55 or 64 may be brought before the Court of Justice [of the European Union] only after all appeal procedures within [EASA] have been exhausted’.
25 It should be noted that Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ 2002 L 240, p. 1), which was repealed by Regulation No 216/2008, contained a Recital 15 identical to Recital 26 of the latter regulation and an Article 41, paragraph 1 of which was worded as follows:
‘An appeal may be brought before the Court of Justice against decisions of the Boards of Appeal on the terms and conditions laid down in Article 230 [EC].’
26 That Article 41 was consistent with the Commission’s preparatory documents in connection with the Proposal for a Regulation of the European Parliament and of the Council on establishing common rules in the field of civil aviation and creating a European Aviation Safety Agency (OJ 2001 C 154 E, p. 1), Article 41(1) of which provided that ‘[a]ctions may be brought before the Court of Justice against decisions of the Boards of Appeal on appeals’.
27 The conclusion to be drawn from an analysis of all these provisions, in terms of both their wording and their purpose, this being both to enable the Board of Appeal when required to hear an application that has been refused by the other units of EASA and, also, where the Board upholds that refusal, to clarify the factual and legal grounds leading to it so that the European Union judicature is in a position to review the legality of the refusal decision, must be that, just as there is continuity in terms of functions between the different examining units of OHIM and its boards of appeal [judgments of 13 March 2007 in OHIM v Kaul C‑29/05 P, ECR, EU:C:2007:162, paragraph 30; 8 July 1999 in Procter & Gamble v OHIM (BABY-DRY), T‑163/98, ECR, EU:T:1999:145, paragraphs 38 to 44; and 10 July 2006 in La Baronia de Turis v OHIM — Baron Philippe de Rothschild (LA BARONNIE), T‑323/03, ECR, EU:T:2006:197, paragraphs 57 and 58], so there is continuity in terms of functions between the different examining units for EASA and its Board of Appeal.
28 Therefore, the subject-matter of the action for annulment before the Court must indeed be considered to be the Board of Appeal decision and not the initial decision.
29 Moreover, it should be noted that the Board of Appeal acted consistently with that interpretation since, at paragraph 98 of its decision, it stated that ‘[t]his decision can be appealed to the General Court of the European Union, in accordance with Article 263 [TFEU] in conjunction with Article 50 of [Regulation No 216/2008, as amended] … within two months of the notification of this decision to the [applicant]’.
30 Consequently, the applicant is not entitled to request the annulment of the initial decision which, according to the heads of claim in the application, is the only matter before the Court. However, it is clear from all the arguments contained in the application that it also relates to the Board of Appeal decision. That is also expressly confirmed in the reply, which states that the action for annulment ‘is, in any event, also directed at the Board of Appeal decision’.
31 The Court must therefore reclassify the applicant’s action for annulment and to regard it as being directed against the Board of Appeal decision.
32 Nevertheless, the consequence of this reclassification is that the pleas in law and arguments about the alleged irregularities relating to the initial decision, such as a lack of grounds or insufficient grounds for that decision, must be dismissed as ineffective as the Court can only rule on the legality of the Board of Appeal decision.
Substance of the action for annulment
33 In support of its action for annulment, the applicant, in essence, relies on six pleas in law. The first plea alleges infringement of the obligation to state reasons; the second plea alleges infringement of the right to be heard; the third plea is based on infringement of Commission Regulation (EC) No 1702/2003 of 24 September 2003 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations (OJ 2003 L 243, p. 6), primarily on the grounds of a mandatory duty on EASA to exercise its powers and, in the alternative, on manifest errors of assessment on EASA’s part; the fourth plea relates to reversal of the burden of proof; the fifth plea alleges infringement of the principle of good administration; the sixth plea is based on alleged infringement of the principles of transparency and legal certainty.
– First plea: infringement of the obligation to state reasons contained in Article 296(2) TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union and related arguments raised in the context of the second plea
34 The applicant maintains that EASA did not provide grounds for the initial decision that were sufficient in law in view of Article 296(2) TFEU and Article 41(2)(c) of the Charter of Fundamental Rights and that the addition of grounds during the proceedings before the Board of Appeal did not mitigate this irregularity. However, as pointed out in paragraphs 22 to 32 above, the initial decision is not the issue before the Court. The plea alleging insufficient grounds must, therefore, be dismissed as ineffective.
35 However, the applicant also claims that during those proceedings, sufficient grounds were not provided in relation to the safety concerns (paragraph 8, p. 31 of the application), in particular in terms of technical reasons justifying the finding that the Robinson R66 helicopter could not be flown safely (paragraph 10, p. 26 of the application).
36 In the context of the second plea, the applicant also submits arguments that, in fact, relate to an infringement of the obligation to state reasons.
37 In this regard it must be said that, contrary to the applicant’s claims, sufficient grounds were provided for the Board of Appeal decision. After recalling that aviation safety was intimately linked to the protection of human life, which ranks foremost among the assets or interests protected by the European Union legal order (paragraph 62 of the Board of Appeal decision), and that EASA was entitled to impose higher safety standards than those applicable elsewhere or hitherto (paragraph 74 of the Board of Appeal decision), the Board of Appeal devoted three headed sections to the question of safety.
38 The first such section, headed ‘Reasons for safety concerns and qualified test pilots’, covers paragraphs 78 and 79 of the Board of Appeal decision, in which the Board states that the non-compliance issue detected during the type-certificate procedure was also relevant to the procedure for approval of flight conditions and that flying the Robinson R66 helicopter required qualified test pilots, even if the FAA took a different view.
39 The second section, headed ‘The relation between the [type-certificate] procedure and the procedure for approval of flight conditions’, covers various paragraphs, of which two (paragraphs 83 and 84 of the Board of Appeal decision) again point to the relevance of the concerns raised during the type-certificate procedure. According to EASA, failure to take up those concerns during the procedure for the approval of flight conditions would mean it failing in its task to ensure aviation safety.
40 The third section, headed ‘Failures to substantiate [EASA]’s concerns and disclose its technical reservations, to hear the [a]pplicant, and to inspect the helicopter’, also deals with safety concerns. The Board of Appeal points out (paragraph 87 of the Board of Appeal decision) that EASA already identified the device giving rise to concerns, namely the hydraulic system of the flight control system of the R66 helicopter (paragraph 5 of the Board of Appeal decision), and that this design flaw constituted sufficient grounds, rendering more specific information unnecessary (paragraphs 87, 90 and 91 of the Board of Appeal decision). The Board states in addition that it cannot see what further technical details the applicant could have sought to obtain, given that it would not be able to modify the device at issue (paragraphs 87 and 88 of the Board of Appeal decision).
41 In answer to the applicant’s argument that it did not have the opportunity to put forward its views on the technical specifications at issue, ruling out a particular cause for the failure or pointing out that the risk attached to the failure was negligible, for example, it must be stated that the question of whether the grounds given for a decision meet the requirements of Article 296 TFEU has to be assessed with regard not only to their wording but also to their context and to all the legal rules governing the matter in question. In particular, the institution concerned is not obliged to adopt a position on all the arguments presented to it by the parties and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (judgments of 14 February 1990 in Delacre and Others v Commission, C‑350/88, ECR, EU:C:1990:71, paragraph 16, and 8 July 2004 in Technische Glaswerke Ilmenau v Commission, T‑198/01, ECR, EU:T:2004:222, paragraphs 59 and 60).
42 As a company operating in the civil aviation sector and as the exclusive dealer for Germany for Robinson Helicopter Company, the applicant could not have been unaware of the exact technical specifications of the aircraft it had purchased from that company or, in particular, of the fact that the FAA had only issued the type-certificate for the Robinson R66 helicopter under an exemption (FAA exemption No 9589), by way of derogation from the relevant standards. When EASA raised similar concerns, although drawing different conclusions, the applicant was perfectly entitled to put forward its arguments on this matter, which it did in fact do, as can be seen from the proceedings before the Board of Appeal.
43 It follows from the foregoing that the first plea in law must be dismissed, partly as ineffective and partly as unfounded.
– Second plea: infringement of the right to be heard, enshrined in Article 41(2)(a) of the Charter of Fundamental Rights
44 The applicant submits several times in its application that its right to be heard, enshrined in Article 41(2)(a) of the Charter of Fundamental Rights, has been infringed. It submits, first, that by relying on facts taken from the type-certificate procedure for the Robinson R66 helicopter to reject its application for approval of flight conditions, when it did not participate in that procedure and was not informed of those facts, EASA infringed its right to be heard. Next, it alleges that the statement in the initial decision that the type-certificate procedure was still in progress and that approval of flight conditions could therefore not be issued was of itself an infringement of that right, as was the reference to internal EASA rules justifying the refusal to provide the applicant with further details of the examinations carried out. Finally it submits that, in referring to particular failure modes of the hydraulic system without specifying what those were, EASA deprived it of the right to be heard, as it was not able to put forward its opinion on the technical specifications at issue, by example by ruling out a particular cause for the failure or pointing out that the risk attached to the failure was negligible.
45 It should be recalled here that, under Article 41(2)(a) of the Charter of Fundamental Rights, every person has the right to be heard, before any individual measure which would affect him or her adversely is taken.
46 It should be stated from the outset that EASA’s decisional processes are specifically designed in order to respect this principle: as set out in paragraphs 22 to 32 above, only a final decision, in other words that of the Board of Appeal, may be referred to the General Court and, beforehand, the Board of Appeal collects written observations from the natural or legal person concerned as well as oral observations at a hearing.
47 It is not disputed that, in the present case, that hearing took place on 13 November 2012 and that, during that hearing, the applicant was able to present all its objections to the alleged malfunctions of the hydraulic system.
48 Therefore, the plea alleging breach of the right to be heard is unfounded.
49 It must be pointed out that any arguments of the applicant pertaining to its right to be heard prior to the initial decision are ineffective since only the Board of Appeal decision is subject to judicial review by the General Court, as noted in paragraph 46 above.
50 In the context of this plea, the applicant also relies on arguments that, in reality, relate to the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy [Article 41(2)(b) of the Charter of Fundamental Rights] and the right of access to documents.
51 It must be recalled, in this respect, that right to access a file (by definition, one relating to the applicant) and the right to access documents (in this case, information in EASA’s file about the application made by Robinson Helicopter Company for a type-certificate in which concerns are raised about the functioning of the flight control hydraulic system) are governed by different provisions but in any event presuppose that a request has been made in this regard.
52 The applicant did not make any request to access its file, which renders ineffective the argument relating to an alleged infringement of the right to access the said file. In addition, the essential contents of the file were relayed to the applicant during the proceedings before the Board of Appeal, in particular in relation to the grounds for refusing the approval of flight conditions.
53 As for access to documents produced or received as part of the type-certificate procedure instigated on the application of Robinson Helicopter Company, it is true that EASA told the applicant on two occasions that its internal rules prevented it from releasing details of certification assessments to third parties. It must be pointed out, however, firstly that EASA was not obliged to spontaneously provide to the applicant anything but the legal and factual grounds justifying the decision that it proposed to take, and, secondly, that it was up to the applicant, if it believed it had grounds to do so, to lodge a request for access to documents under Regulation (EC) No 1049/2001 of the European Parliament and the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) since, pursuant to Article 58(1) and (3) of Regulation No 216/2008, as amended, Regulation No 1049/2001 applies to EASA and a natural or legal person is entitled to address himself/herself to EASA accordingly. It should be recalled that no such request, which would involve the applicant specifying the documents and papers that it wished to access, was made.
54 The argument alleging that failure to communicate the documents and papers in question was unlawful can therefore not be accepted. Consequently, given that the arguments presented in the context of the second plea in law and relating to an alleged infringement of the obligation to state reasons have been rejected, the second plea must be dismissed in its entirety.
– Third plea: infringement of Regulation No 1702/2003, primarily on the basis of a mandatory duty on EASA to exercise its powers and, in the alternative, on the basis of manifest errors of assessment on EASA’s part, and fourth plea: reversal of the burden of proof
55 The third and fourth plea may be examined together, given that examination of their merits depends on the interpretation of the provisions applicable in this case.
56 It should first be pointed out that the version of Regulation No 216/2008 applicable to the present case is that resulting from Regulation (EC) No 1108/2009 of the European Parliament and of the Council of 21 October 2009, amending Regulation No 216/2008 and repealing Directive 2006/23/EC (OJ 2009 L 309, p. 51).
57 Article 5(1) of Regulation No 216/2008, as amended, states in principle that aircraft falling within its scope shall comply with the essential requirements for airworthiness. Article 5(2)(a) and (c) of Regulation No 216/2008, as amended, reiterates the requirement for a type-certificate and makes it clear that no aircraft shall be operated without a valid certificate of airworthiness.
58 By way of derogation to that provision, Article 5(4)(a) of Regulation No 216/2008, as amended, provides that a permit to fly may be issued in respect of an aircraft for which no type-certificate has been issued ‘when it is shown that the aircraft is capable of performing safely a basic flight’.
59 In addition, the Annex to Regulation No 1702/2003, as amended [replaced by Commission Regulation (EU) No 748/2012 of 3 August 2012 laying down implementing rules for the airworthiness and environmental certification of aircraft and related products, parts and appliances, as well as for the certification of design and production organisations (OJ 2012 L 224, p. 1)] contains, in Part 21, entitled ‘Certification of aircraft and related products, parts and appliances, and of design and production organisations’, under Section A, entitled ‘Technical requirements’, and Subpart P, entitled ‘Permit to fly’, provisions some of which relate to an application for permit to fly and others to an application for approval of flight conditions.
60 21A.701 of the Annex to Regulation No 1702/2003, entitled ‘Scope’, provides:
‘(a) Permits to fly shall be issued in accordance with this Subpart to aircraft that do not meet, or have not been shown to meet, applicable airworthiness requirements but are capable of safe flight under defined conditions and for the following purposes:
…
6. flying the aircraft for customer acceptance;
…
9. market survey, including customer’s crew training;
10. exhibition and air show;
11. flying the aircraft to a location where maintenance or airworthiness review are to be performed, or to a place of storage;
…
(b) This Subpart establishes the procedure for issuing permits to fly and approving associated flight conditions, and establishes the rights and obligations of the applicants for, and holders of, those permits and approvals of flight conditions.’
61 21A.707 of the Annex to Regulation No 1702/2003, entitled ‘Application for permit to fly’, states as follows:
‘…
(c) Where the flight conditions are not approved at the time of application for a permit to fly, an application for approval of the flight conditions shall be made in accordance with 21A.709.’
62 According to 21A.708 of the Annex to Regulation No 1702/2003, entitled ‘Flight conditions’:
‘Flight conditions include:
(a) the configuration(s) for which the permit to fly is requested;
(b) any condition or restriction necessary for safe operation of the aircraft, including:
1. the conditions or restrictions put on itineraries or airspace, or both, required for the flight(s);
2. the conditions and restrictions put on the flight crew to fly the aircraft;
3. the restrictions regarding carriage of persons other than flight crew;
4. the operating limitations, specific procedures or technical conditions to be met;
5. the specific flight test programme (if applicable);
6. the specific continuing airworthiness arrangements including maintenance instructions and regime under which they will be performed;
(c) the substantiation that the aircraft is capable of safe flight under the conditions or restrictions of subparagraph (b);
(d) the method used for the control of the aircraft configuration, in order to remain within the established conditions.’
63 21A.709 of the Annex to Regulation No 1702/2003, entitled ‘Application for approval of flight conditions’, is worded as follows:
‘(a) Pursuant to 21A.707(c) and when the applicant has not been granted the privilege to approve the flight conditions, an application for approval of the flight conditions shall be made:
1. when approval of the flight conditions is related to the safety of the design, to [EASA] in a form and manner established by [EASA]; or
2. when approval of the flight conditions is not related to the safety of the design, to the [c]ompetent [a]uthority in a form and manner established by that authority.
(b) Each application for approval of the flight conditions shall include:
1. the proposed flight conditions;
2. the documentation supporting these conditions; and
3. a declaration that the aircraft is capable of safe flight under the conditions or restrictions of paragraph 21A.708(b).’
64 21A.710 of the Annex to Regulation No 1702/2003, entitled ‘Approval of flight conditions’, provides:
‘(a) When approval of the flight conditions is related to the safety of the design, the flight conditions shall be approved by:
1. [EASA]; or
2. an appropriately approved design organisation, under the privilege of 21A.263(c)(6).
(b) When approval of the flight conditions is not related to the safety of the design, the flight conditions shall be approved by the [c]ompetent [a]uthority, or the appropriately approved organisation that will also issue the permit to fly.
(c) Before approving the flight conditions, [EASA], the [c]ompetent [a]uthority or the approved organisation must be satisfied that the aircraft is capable of safe flight under the specified conditions and restrictions. [EASA] or the [c]ompetent [a]uthority may make or require the applicant to make any necessary inspections or tests for that purpose.’
65 Analysis of these provisions shows, first, that a permit to fly is required for aircraft that do not meet, or have not been shown to meet, applicable airworthiness requirements but that are capable of safe flight under defined conditions and for purposes included on an exhaustive list, and, secondly, that no permit to fly may be issued without prior approval of flight conditions.
66 Having only applied for approval of flight conditions with a view to a later grant of a permit to fly, the applicant found itself, under the terms of 21A.701(a) of the Annex to Regulation No 1702/2003, as the holder of an aircraft which did not meet, or had not been shown to meet, applicable airworthiness requirements. EASA was therefore incorrect, in the initial decision, in thinking that the application for approval of flight conditions was dependent on Robinson Helicopter Company’s application for a type-certificate for the Robinson R66 helicopter, since that certification would in fact have rendered the application for approval of flight conditions pointless, as the aircraft would have met applicable airworthiness requirements.
67 It is also clear from the hearing that, after a certain number of modifications designed to reduce the unreliability of the Robinson R66 helicopter’s hydraulic system, Robinson Helicopter did obtain the type-certificate it sought, after the Board of Appeal decision was taken.
68 However, as the Court has repeatedly made clear, the matter before it is not the initial decision but the Board of Appeal decision. The latter contains different grounds from those in the initial decision. First, the Board of Appeal stated that it ‘agree[d] in principle with the [applicant]’ that the type-certificate procedure was ‘distinct from the procedure for approval of flight conditions’ (paragraph 81 of the Board of Appeal decision), but, secondly, pointed out that EASA had not held that concerns arising in a type-certificate procedure automatically prevented the approval of flight conditions, arguing only that ‘the material concerns it ha[d] in relation to a [type-certificate] approval [were] also relevant in the procedure for approval of flight conditions’ (paragraph 83 of the Board of Appeal decision), as an agency whose task is to ensure aviation safety was entitled to do (paragraph 84 of the Board of Appeal decision).
69 Aside from the fact that reading the initial decision does not allow for the interpretation given to it by the Board of Appeal, it must be noted that the grounds stated by the Board of Appeal are, however, accurate since, under 21A.710(c) of the Annex to Regulation No 1702/2003, EASA must be satisfied prior to approving flight conditions ‘that the aircraft is capable of safe flight under the specified conditions and restrictions’. EASA was therefore right to base its decision on concerns raised in the context of a type-certificate procedure if they were such as to affect its capability for safe flight, contrary to the applicant’s case (paragraphs 8 and 9, p. 21 of the application). Concerns that constitute a barrier to obtaining a type-certificate are not necessarily critical with regard to the capability of the aircraft for safe flight or, therefore, to approval of flight conditions.
70 The Board of Appeal did therefore not make an error of law in reaching that decision.
71 It is now appropriate to determine, first, what EASA’s powers are in relation to assessing an aircraft’s capability for safe flight; next, what is the burden of proof in that respect; and finally, what sort of review the Court must carry out with regard to EASA’s assessment of that capability.
72 First, in order to identify the nature and extent of EASA’s powers to assess the capability of an aircraft for safe flight, in the context of approving or refusing to approve flight conditions, the various provisions set out in paragraphs 62 to 64 above are relevant.
73 According to those provisions, in view of the flight conditions presented by an applicant, which must be approved prior to the filing of an application for a permit to fly, which itself is by way of derogation from the fundamental requirement for a valid certificate of airworthiness, the competent authority (EASA or an appropriately approved design organisation when approval of the flight conditions is related to the safety of the design, as provided in 21A.710(a) of the Annex to Regulation No. 1702/2003) ‘must be satisfied that the aircraft is capable of safe flight under the specified conditions and restrictions’ and ‘may make or require the applicant to make any necessary inspections or tests for that purpose’ [21A.710(c) of the Annex to Regulation No 1702/2003].
74 The conclusion to be drawn from that provision is that, contrary to the applicant’s case, EASA does not have a mandatory duty to exercise its powers but that it has discretion in relation to a complex technical question, namely determining whether or not the aircraft is capable of safe flight (see, to that effect and by analogy, judgment of 17 September 2007 in Microsoft v Commission, T‑201/04, ECR, EU:T:2007:289, paragraph 88 and the case-law cited).
75 The applicant’s argument based on the wording of 21A.701(a) of the Annex to Regulation No 1702/2003, and, in particular, on the words ‘shall be issued’, cannot be accepted, for two reasons: first, those words do not relate to approvals of flight conditions but to permits to fly, where, it is recalled, there is a presupposition that flight conditions have previously been approved; secondly, the assumed duty on the part of the competent authority implied by the words in question only arises once the competent authority has held that the aircraft concerned is capable of safe flight for the purposes defined at that time, which means that it is simply the consequence of the positive assessment made by the competent authority.
76 Consequently, it cannot be deduced from 21A.701(a) of the Annex to Regulation No 1702/2003 that EASA has a mandatory duty to exercise its powers and, even if that were the case, that provision does not govern the procedure relevant to the present case, thus invalidating any allegation that it has been disregarded.
77 Next, the discretion afforded by 21A.710(a) of the Annex to Regulation No 1702/2003 operates in favour either of EASA or of an appropriately approved design organisation in a specific context, namely where there is an issue related to the safety of the design, which is therefore already identified as such at the time the application for approval of flight conditions is filed.
78 The element of discretion implied in such a context by the need to be satisfied that an aircraft is capable of safe flight is reflected by the fact that EASA ‘may make or require the applicant to make any necessary inspections or tests for that purpose’ (see paragraphs 64 and 72 above). The applicant is therefore not justified in maintaining (end of paragraph 5, and paragraph 6, p. 20 of the application) that EASA should have made or required to be made any necessary inspections or tests, since the actual wording of 21A.710(c) of the Annex to Regulation No 1702/2003 shows that this is merely a possibility and not an obligation.
79 As long as due mention is made in the grounds for its decision, EASA may therefore rely on any information in its possession that would substantiate its safety assessment of the aircraft in question, for example by drawing on the documentation supplied in support of the flight conditions [21A.709(b)(2) of the Annex to Regulation No 1702/2003], and is not bound to make inspections or tests or require them to be made if it considers that it has sufficient information.
80 Secondly, in relation to the burden of proof, it is important to point out that the mechanism set up for the approval of flight conditions places this burden on an applicant, who is responsible for providing ‘the substantiation that the aircraft is capable of safe flight under the conditions or restrictions’ specified by him/her [21A.708(c) of the Annex to Regulation No 1702/2003], among which are the conditions and restrictions put on the flight crew to fly the aircraft [21A.708(b)(2) of the Annex to Regulation No 1702/2003] and the operating limitation, specific procedures or technical conditions to be met [21A.708(b)(4) of the Annex to Regulation No 1702/2003].
81 The proposed flight conditions must, as set out in paragraph 63 of this judgment, be accompanied by documentation and a declaration that the aircraft is capable of safe flight under the conditions referred to above [21A.709(b)(2) and (3) of the Annex to Regulation No 1702/2003].
82 It is therefore, above all, on the basis of the information provided by an applicant that EASA must determine whether an aircraft is capable of safe flight, in the context of the procedure in question, as has been pointed out.
83 The first consequence of this is that, since the provisions allowing approval of flight conditions are by way of derogation from the requirement for a valid certificate of airworthiness, they must be strictly interpreted (see, to that effect, and by analogy, judgments of 15 December 1993 in Charlton and Others, C‑116/92, ECR, EU:C:1993:931, paragraph 20; 20 November 2008 in Weber, C‑1/07, ECR, EU:C:2008:640, paragraph 29 and the case-law cited; and 4 October 2012 in Finnair, C‑22/11, EU:C:2012:604, paragraph 38 and the case-law cited).
84 The second consequence is that an applicant whose application for approval of flight conditions is not accompanied by sufficient evidence has no justification for complaining when EASA notes this inadequacy and uses the technical and scientific knowledge in its possession in order to reject the application.
85 In the present case, the application for approval of flight conditions dated 10 January 2012 and made on EASA form 37 (Annex 6 of the application) shows that, in field 4.3 of the form, which the guidance notes describe as the most important field, since it provides for a description of non-compliance with the applicable airworthiness requirements, the applicant simply stated that the aircraft was certified by the FAA, which is also mentioned in paragraph 4 of the Board of Appeal decision, and that the type-certificate application made to EASA was ongoing. It should be noted in this regard that the applicant gave incorrect information to EASA in field 3.4 of the form, by stating that the application was not connected with an ongoing certification. The fact remains that the applicant made no mention of any safety problem. Field 7 of the annex to the application for approval of flight conditions dated 10 January 2012, entitled ‘Conditions/Restrictions’, also makes clear the need to refer to the pilot’s operation manual for the Robinson R66 helicopter, to its maintenance manual and to the instructions for continuing airworthiness.
86 Therefore, as the applicant did not supply any specific evidence of the Robinson R66 helicopter’s capability for safe flight, other than the existence of a certificate issued by the FAA, the applicant is not justified in maintaining that EASA reversed the burden of proof by stating that this evidence was lacking and by using its own technical and scientific knowledge as at the date the Board of Appeal decision was taken, in relation to the problems encountered by the helicopter during the type-certificate procedure, to which the applicant itself made reference.
87 It was therefore correct of the Board of Appeal to remind the applicant, at paragraph 61 of the Board of Appeal decision, that it was for the applicant to carry the burden of proof in relation to its contentions about the safety of the Robinson R66 helicopter.
88 Thirdly, in relation to the manifest errors of assessment said to have been made by the Board of Appeal, it is important to determine as a preliminary matter what powers of review the European Union judicature has over EASA decisions such as the Board of Appeal decision.
89 It must again be reiterated that complex technical assessments are subject to limited review by the European Union judicature (see, to that effect and by analogy, judgment in Microsoft v Commission, paragraph 74 above, EU:T:2007:289, paragraph 88 and the case-law cited, and judgment of 7 February 2013 in EuroChem MCC v Council, T‑459/08, EU:T:2013:66, paragraph 36), which means, as the applicant rightly submits in the alternative, that the judicature verifies that procedural rules have been complied with, that the facts on which the contested choice is based have been accurately stated and that there has been no manifest error of assessment of those facts or misuse of powers (judgments in Microsoft v Commission, paragraph 74 above, EU:T:2007:289, paragraph 87, and EuroChem MCC v Council, EU:T:2013:66, paragraph 37).
90 Since the assessment of whether an aircraft is capable of safe flight constitutes a complex technical assessment, the level of judicial review applicable to it must be the limited review of the European Union judicature. The wording of 21A.710(c) of the Annex to Regulation No 1702/2003, which does not specify what methods or criteria EASA must adopt in order to be ‘satisfied that the aircraft is capable of safe flight’ confirms that EASA has a broad discretion. A comparison of different language versions of this provision, as carried out by EASA (paragraph 49 of the defence) also supports this analysis as the German, Spanish, Dutch and English versions state that EASA ‘must be satisfied’ that the aircraft is capable of safe flight. What the European Union judicature must review is therefore the existence of any manifest errors of assessment.
91 It must first be observed that the fact that EASA did not undertake any inspections or tests does not constitute such an error. As has been observed above, EASA is perfectly entitled not to carry out such checks if it considers itself able to find that the aircraft’s capability for safe flight has not been demonstrated, without the need for such checks. In the present case, bearing in mind that there was no mention of a safety issue in the application for approval of flight conditions, although that application was necessarily made in the light of a question over the safety of the design of the Robinson R66 helicopter (see paragraph 84 above) and also bearing in mind the doubts that EASA harboured about the reliability of the hydraulic system of the aircraft’s flight control system due to the problems encountered during the type-certificate procedure, it was, despite what the applicant maintains, permissible for the Board of Appeal to dismiss the applicant’s application, relying on specific grounds relating to the type-certificate procedure and without the need to carry out an inspection or tests.
92 The applicant goes on to submit that the hydraulic system of the Robinson R66 helicopter is the same as that used since 1995 by the Robinson R44 helicopter, which flies in Europe with a type-certificate issued by EASA. The applicant deduces from this that EASA made a manifest error of assessment in refusing to approve the flight conditions for the Robinson R66 helicopter.
93 In this respect, it should first be recalled that the procedure for approval of flight conditions presupposes, by definition, that there is no valid certificate of airworthiness. It is not in dispute that such a certificate did not exist at the date the Board of Appeal decision was taken, since the Robinson R66 helicopter had not been awarded a type-certificate; otherwise the procedure at the centre of this case would have been pointless. As the issue of approval of flight conditions is, by its nature, specific to each aircraft, the fact that another aircraft, said to have similar characteristics to the aircraft that is the subject of the application for approval of flight conditions, has been granted a type-certificate cannot have any effect on the lawfulness of the Board of Appeal decision.
94 Secondly and in any event, it is clear from the information on file (Annex 17 to the application) that the type-certificate dated 21 April 2010 awarded to the Robinson R44 helicopter was issued on the basis of Article 2(3)(a) of Regulation No 1702/2003 which allowed Member States, in certain cases, to elect not to apply Part 21 of the Annex to that regulation (the part containing the main provisions relevant to the present case, as set out in paragraphs 59 to 64 above) until 28 September 2008 and to substitute the relevant national rules. It was thus under the national rules of a Member State that EASA issued the type-certificate dated 21 April 2010 and not under EU law, that is to say, the provisions applicable to the present case. The applicant may therefore not rely on certification based on the technical expertise of EASA, namely in relation to the hydraulic system of the flight control system of the Robinson R44 helicopter, in order to support its contention that EASA made a manifest error of assessment in not approving the flight conditions for the Robinson R66 helicopter, given that EASA merely applied the relevant national rules, as it was required to do under Article 2(3)(a) of Regulation No 1702/2003.
95 Finally, it is important to point out that when EASA, which, as stated in Article 2(1) of Regulation No 216/2008, as amended, must establish and maintain ‘a high uniform level of civil aviation in Europe’, is dealing with safety regulations which it wants to prevail in relation to aircraft belonging to natural or legal persons on European Union territory, it is not bound by any less stringent requirements used by bodies in a third State responsible for regulating air safety, such as the FAA.
96 In the present case, international conventions, in particular the Convention on International Civil Aviation, signed in Chicago (Illinois, United States) on 7 December 1944 and ratified by all EU Member States, do not preclude Member States from adopting safety rules relating to their own aircraft that are stricter than those applied by other States Parties to that convention, such as the United States of America. The type-certificate issued by the FAA (annex B1 to the defence) could therefore not to be held to be binding on EASA.
97 In any event, examination of that type-certificate shows that the hydraulic assistance of the Robinson R66 helicopter was only validated via the exemption from certain safety requirements, as mentioned by EASA in paragraph 2 of its defence, after EASA sought to apply those requirements. Once again, therefore, the Board of Appeal did not commit a manifest error of assessment in rejecting the applicability of the type-certificate issued by the FAA to the present case.
98 As for the possibility of an ‘N-registration’ for the aircraft, which was raised by a servant of EASA prior to the Board of Appeal decision being taken, it should be pointed out, firstly, that that was not one of the grounds for that decision and therefore cannot affect the lawfulness of that decision and, secondly, that it was simply a question of reminding the applicant that it was open to it to register in the United States pursuant to the type-certificate issued by the FAA. Therefore, that guidance cannot constitute a manifest error of assessment either.
99 It follows from the above that the third and fourth pleas must be dismissed.
– Fifth plea: infringement of the principle of sound administration, contained in Article 41 of the Charter of Fundamental Rights
100 The infringement in question, according to the applicant, lies in the fact that EASA did not consider itself obliged to carry out a check or inspection of its aircraft and merely relied on the concerns raised in the context of the type-certificate procedure.
101 For the reasons given at paragraphs 69 to 99 above in the context of the response to the third and fourth pleas, the fifth plea must also be dismissed. First, given that the applicant made no mention in its application for approval of flight conditions dated 10 January 2012 of any problems that could be seen as affecting the safety of the aircraft and, secondly, given the information that EASA possessed from the checks carried out during the type-certificate procedure, which it had not only the right, but the duty, to declare, EASA cannot be criticised for not exercising its ability to make an inspection or tests or require them to be made.
102 It must therefore be held that EASA fulfilled its duty to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect and by analogy, judgements of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14, and 30 September 2003 in Atlantic Container Line and Others v Commission, T‑191/98, T‑212/98 to T‑214/98, ECR, EU:T:2003:245, paragraph 404), and that it in no way infringed the principle of sound administration.
– Sixth plea: infringement of the principles of transparency and legal certainty
103 The Court observes that the plea in question is merely outlined in the application, at the end of the arguments set out under the heading ‘Subject-matter of the action’, and at the end of the arguments directly under the heading ‘Merits of the first head of claim seeking annulment of the [initial decision]’. The applicant merely asserts that the contested decision ‘also infringes the principles of good administration, transparency and legal certainty’.
104 As infringement of those two principles is not reflected anywhere else in the application, the sixth plea must be dismissed as inadmissible, as it is contrary to the requirements of Article 44(1)(c) of the Rules of Procedure of the General Court.
105 Under that article, any application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. This requirement presupposes that those indications are sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without any further information.
106 The application must accordingly specify the nature of the ground or grounds on which the action is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (judgments of 14 May 1998 in Mo och Domsjö v Commission, T‑352/94, ECR, EU:T:1998:103, paragraph 333, and 14 January 2009 in Kronoply v Commission, T‑162/06, ECR, EU:T:2009:2, paragraph 54).
107 Dismissal of the sixth plea leads to dismissal of the action for annulment in its entirety.
The action for failure to act
108 Under Article 50(1) of Regulation No 216/2008, as amended, an action may be brought against EASA for failure to act. However, this right may only be exercised on the conditions laid down by primary law, in this instance Article 265 TFEU, the second and third paragraphs of which specify that an action for failure to act may be brought by a natural or legal person on condition that the body concerned has first been called upon by that person to act (see, to that effect, judgment of 4 February 1959 in De Gezamenlijke Steenkolenmijnen in Limburg v High Authority, 17/57, ECR, EU:C:1959:3, p. 1, 8, and order of 6 February 1997 in de Jorio v Council, T‑64/96, ECR, EU:T:1997:15, paragraph 39).
109 It is only after a period of two months from the date of that invitation to act that an action for failure to act may be brought before the General Court, within a further period of two months.
110 When invited by the General Court at the hearing to elaborate on what it considered to be the alleged failure to act, the applicant submitted that this was firstly the fact that EASA had not effectively initiated the procedure underlying its application for approval of flight conditions for a Robinson R66 helicopter (serial number 0034) and secondly the fact that EASA did not carry out an actual inspection of the aircraft.
111 However, it must be noted that, in view of this alleged double failure to act, the applicant did not present EASA with an invitation to act, the application for approval of flight conditions merely constituting an application seeking an administrative act, even when renewed. According to the case-law, it must be sufficiently clear from the application that its purpose is to compel the institution, body or agency concerned to state its position (see, to that effect, judgment of 10 June 1986 in Usinor v Commission, 81/85 and 119/85, ECR, EU:C:1986:234, paragraph 15, and order of 30 April 1999 in Pescados Congelados Jogamar v Commission, T‑311/97, ECR, EU:T:1999:89, paragraph 35) and that it constitutes a preliminary to legal proceedings (see, to that effect, judgments of 13 July 1961 in Elz v High Authority, 22/60 and 23/60, ECR, EU:C:1961:17, p. 181, 188; of 6 May 1986 in Nuovo Campsider v Commission, 25/85, ECR, EU:C:1986:195, paragraph 8; and order in Pescados Congelados Jogamar v Commission, EU:T:1999:89, paragraph 37).
112 For the sake of completeness, even if the action were admissible, it would have to be dismissed on its merits due to the considerations set out in paragraphs 69 to 99 and 100 to 102 above.
113 Therefore, the plea of inadmissibility raised by EASA in relation to the action for failure to act must be upheld and that action must be dismissed as inadmissible.
The action for compensation
114 EASA submits that the action for compensation is inadmissible owing to the inadmissibility of the other actions seeking, first, the annulment of the initial decision and, second, a declaration of a failure on its part to act.
115 Article 50(1) of Regulation No 216/2008, as amended, allows for the possibility of EASA being liable for damages caused by it in the course of its activities. The applicant maintains that the initial decision was unlawful and was neither reversed nor set aside, and therefore, together with EASA’s failure to act, caused loss, for which the applicant seeks compensation, as quantified in its application.
116 To the extent that the action for damages is based on the alleged unlawfulness of the Board of Appeal decision, it should be noted that one of the conditions for non-contractual liability of the Union to be engaged is absent. According to settled case-law, in order for the Union to incur non-contractual liability under the second paragraph of Article 340 TFEU and for the right to compensation to be enforceable, a number of conditions must be satisfied: the conduct alleged against the institutions must be unlawful, actual damage must have been suffered and there must be a causal link between that conduct and the damage alleged. That liability cannot be regarded as having been incurred without satisfaction of all the conditions to which the duty to make good any damage, as defined in the second paragraph of Article 340 TFEU, is thus subject (see, to that effect, judgment of 9 September 2008 in FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06P, ECR, EU:C:2008:476, paragraphs 164 and 165 and the case-law cited).
117 In the absence of any unlawfulness in relation to the contested decision, the European Union courts may dismiss the application in its entirety without it being necessary for them to examine the other preconditions for such liability, namely the fact of damage and the existence of a causal link between the conduct of the institutions and the damage complained of (see judgment in FIAMM and Others v Council and Commission, paragraph 116 above, EU:C:2008:476, paragraph 166 and the case-law cited).
118 That is the situation in the present case, since the action for annulment has been dismissed on its merits in paragraph 107 above.
119 To the extent that the action for damages is based on the alleged failure to act on the part of EASA, the inadmissibility in the present case of the action for failure to act, due to the absence of an invitation to act as provided for in Article 265 TFEU, prevents the applicant from effectively claiming that it suffered loss as a result of that failure. Moreover, had the action been admissible it would still have been dismissed, as in paragraph 112 above.
120 Therefore, the damage that the applicant considers that it has suffered cannot be held to have been caused by any failure on the part of EASA.
121 It is therefore necessary to dismiss the action for compensation and, consequently, all of the applicant’s claims.
Costs
122 Since EASA has applied for the applicant to be ordered to pay the costs, and the applicant has been unsuccessful, the applicant must be ordered to pay the costs pursuant to Article 87(2) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Heli-Flight GmbH & Co. KG to pay the costs.
Delivered in open court in Luxembourg on 11 December 2014.
[Signatures]