Action brought on 9 January 2014 – Spain v Commission

(Case T-25/14)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M.J. García-Valdecasas Dorrego, Abogado del Estado)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul Commission Decision C(2013) 7095 of 29 October 2013 on the compliance of 2014 unit rates for charging zones under Article 17 of Implementing Regulation (EU) No 391/2013, in so far as it sets Spain’s unit rate at EUR 71.69 (Continental Spain) and EUR 58.36 (Spain, Canary Islands); and

order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant contests the Commission Decision of 29 October 2013 on the compliance of 2014 unit rates for charging zones under Article 17 of Implementing Regulation (EU) No 391/2013, in so far as it sets Spain’s unit rate at EUR 71.69 (Continental Spain) and EUR 58.36 (Spain, Canary Islands).

In support of the action, the applicant relies on the following pleas in law:

Breach of the first paragraph of Article 2 of Commission Regulation (EU) No 1191/2010 of 16 December 2010, read in conjunction with Article 11a of Regulation (EC) No 1794/2006 laying down a common charging scheme for air navigation services, since, in accordance with those provisions, the service providers are not required to pay, during the first reference period (2012-2014), the difference between the actual number of service units and the number of service units forecast where this does not exceed +/-2%, in the case of Member States with national regulations in existence before 8 July 2010 that establish a reduction on the unit rate going beyond the European Union-wide targets.

Breach of the principle of the hierarchy of norms, since a decision cannot amend a European Union Regulation; nor can it decide that a risk sharing mechanism ‘appl[ies] already’ with effect from a 0% difference instead of with effect from a 2% difference, when the relevant regulation has made no express provision to that effect.

Abuse of procedure, since, in establishing ex novo a risk sharing criterion in the charging scheme, the Commission did not follow the procedure established in Article 5(3) of Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky, referred to in Article 15(4) of Regulation (EC) No 550/2004 of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky. According to the applicant, those provisions provide that the Commission is to adopt implementing rules for the purpose of establishing that charging scheme, assisted by the Single Sky Committee and, moreover, in accordance with the procedure laid down in Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.

In the alternative, the applicant also invokes a breach of the obligation to state reasons, and of Article 16 of Regulation (EC) No 550/2004 since, before taking its decision, the Commission did not consult the Single Sky Committee concerning whether or not Spain’s position was consistent with the principles and rules of the charging scheme.