C-408/24

Provisional text OPINION OF ADVOCATE GENERAL KOKOTT delivered on 4 September 2025 (1) Case C‑408/24 Republic of Austria v Austrian Airlines AG (Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria)) ( Reference for a preliminary ruling – Air transport – Single European sky – Regulation (EC) No 549/2004 – Article 2(4) – Regulation (EC) No 550/2004 – Article 8 – Air navigation service providers – Failure of the information server at Vienna-Schwechat airport (Austria) – Breach of obligation by the service provider – Delays in handling incoming and outgoing flights – Financial damage suffered by an airline – Breach of a rule protecting individuals – National law or European Union Law – Action for damages – State liability ) I.      Introduction 1.        Do the provisions of EU law or national law governing the functioning and safety of the air transport system protect an air carrier that, as an airspace user, is required to use the services of a State-controlled air navigation service provider in exchange for consideration? And can such an air carrier bring an action against the State claiming compensation for the financial damage it sustained as a result of that service provider having breached an obligation provided for in those provisions? Those questions are at the core of the request for a preliminary ruling, which has arisen mainly by reason of the judgment of the Court of Justice in Skeyes. (2) 2.        According to settled case-law, a State liability claim of that nature presupposes a breach of a rule (of EU law) that confers a right on individuals or at least (also) aims to protect those individuals. (3) The Court bases the need for such liability on the principle of effective legal protection as well as on the fundamental right to an effective judicial remedy, as referred to in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). (4) 3.        The question referred seeks to ascertain, in particular, whether the necessary rule protecting individuals is enshrined in EU law or, as the case may be, in national law. In that respect, the findings set out in the judgment in Skeyes (5) concerning the right to an effective remedy in the area of air navigation are ambivalent. An opportunity has thus arisen for the Court to clarify its previous case-law. II.    Legislative framework A.      European Union law 1.      Regulation (EC) No 549/2004 4.        Article 1(1) of Regulation (EC) No 549/2004 (6) states: ‘The objective of the single European sky initiative is to enhance current air traffic safety standards, to contribute to the sustainable development of the air transport system and to improve the overall performance of air traffic management (ATM) and air navigation services (ANS) for general air traffic in Europe, with a view to meeting the requirements of all airspace users. This single European sky shall comprise a coherent pan-European network of routes, network management and air traffic management systems based only on safety, efficiency and technical considerations, for the benefit of all airspace users. In pursuit of this objective, this Regulation establishes a harmonised regulatory framework for the creation of the single European sky.’ 5.        Article 2 of Regulation No 549/2004 lays down, inter alia, the following definitions: ‘… 4.      “air navigation services” means air traffic services; communication, navigation and surveillance services; meteorological services for air navigation; and aeronautical information services; 5.      “air navigation service providers” means any public or private entity providing air navigation services for general air traffic; … 8.      “airspace users” means operators of aircraft operated as general air traffic; … 11.      “air traffic services” means the various flight information services, alerting services, air traffic advisory services and ATC [air traffic control] services (area, approach and aerodrome control services); …’ 2.      Regulation (EC) No 550/2004 6.        Article 1(1) of Regulation (EC) No 550/2004, (7) entitled ‘Scope and objective’, provides: ‘Within the scope of [Regulation No 549/2004], this Regulation concerns the provision of air navigation services in the single European sky. The objective of this Regulation is to establish common requirements for the safe and efficient provision of air navigation services in the [European Union].’ 7.        Article 6 of Regulation No 550/2004, contained in Chapter II ‘Rules for the provision of services’ and entitled ‘Common requirements’, states: ‘Common requirements for the provision of air navigation services shall be established in accordance with the procedure referred to in Article 5(3) of [Regulation No 549/2004]. The common requirements shall include the following: –        technical and operational competence and suitability, –        systems and processes for safety and quality management, –        reporting systems, –        quality of services, –        financial strength, –        liability and insurance cover, –        ownership and organisational structure, including the prevention of conflicts of interest, –        human resources, including adequate staffing plans, –        security.’ 8.        Article 7 of Regulation No 550/2004, entitled ‘Certification of air navigation service providers’, states, inter alia: ‘1.      The provision of all air navigation services within the [European Union] shall be subject to certification by Member States. … 3.      National supervisory authorities shall issue certificates to air navigation service providers … 4.      Certificates shall specify the rights and obligations of air navigation service providers … …’ 9.        Article 8 of Regulation No 550/2004, entitled ‘Designation of air traffic service providers’, states, inter alia: ‘1.      Member States shall ensure the provision of air traffic services on an exclusive basis within specific airspace blocks in respect of the airspace under their responsibility. For this purpose, Member States shall designate an air traffic service provider holding a valid certificate in the [European Union]. … 3.      Member States shall define the rights and obligations to be met by the designated air traffic service providers. The obligations may include conditions for the timely supply of relevant information enabling all aircraft movements in the airspace under their responsibility to be identified. 4.      Member States shall have discretionary powers in choosing an air traffic service provider, on condition that the latter fulfils the requirements and conditions referred to in Articles 6 and 7. …’ 3.      Implementing Regulation (EU) No 1035/2011 10.      Annex I, point 1, to Implementing Regulation (EU) No 1035/2011, (8) entitled ‘General requirements for the provision of air navigation services’, provides as follows: ‘Technical and operational competence and capability Air navigation service providers shall be able to provide their services in a safe, efficient, continuous and sustainable manner consistent with any reasonable level of overall demand for a given airspace. To this end, they shall maintain adequate technical and operational capacity and expertise.’ B.      National legislation 1.      Luftfahrtgesetz (Austrian Law on Aviation) 11.      The provisions on air navigation are contained in the Bundesgesetz über die Luftfahrt vom 2. Dezember 1957 (9) (Luftfahrtgesetz) (Austrian Law on Aviation; ‘the LFG’), in Part 8 thereof entitled ‘Air traffic control, operation of civilian aircraft and special safety measures’. 12.      Paragraph 120 of the LFG, entitled ‘Performance of air navigation’, states, inter alia: ‘(1)      Unless otherwise provided for in or by international conventions, provisions of EU law or this Federal Law, the performance of air navigation, as a public authority task of the Federation, shall be the responsibility of Austro Control GmbH. Austro Control GmbH is, for the purposes of the performance of air navigation services within the meaning of Paragraph 119(2)(1)(a) and aviation weather services within the meaning of Paragraph 119(2)(1)(c), appointed on an exclusive basis within the meaning of Articles 8 and 9 of Regulation (EC) No 550/2004 on the provision of air navigation services in the single European sky (“the service provision Regulation”) …. … (5)      Air navigation service providers are required to have the air navigation facilities necessary for the proper and safe performance of the air navigation tasks assigned to them and in line with international standards, to maintain them in operational condition and to operate them properly. …’ 2.      Austro Control Gesellschaft-Gesetz (Federal Law on Austro Control GmbH) and the Amtshaftungsgesetz (Law on Liability of Public Authorities) 13.      The Bundesgesetz über die Austro Control Gesellschaft mit beschränkter Haftung (10) (Federal Law on Austro Control GmbH; ‘the ACG-Gesetz’) contains, in Article I thereof, provisions governing the formation, duties and powers of Austro Control GmbH, as well as the liability of the Federation. The Federation is exclusively liable for the damage caused to third parties in the performance of its duties (Paragraph 10(1) of the ACG-Gesetz, read in conjunction with Paragraph 1(1) of the Amtshaftungsgesetz (11) (Law on Liability of Public Authorities; ‘the AHG’). III. The dispute in the main proceedings, the question referred and the proceedings before the Court of Justice 14.      The Austro Control Österreichische Gesellschaft für Zivilluftfahrt mit beschränkter Haftung (‘Austro Control’) is a company incorporated on the basis of the ACG-Gesetz, whose sole shareholder is the Republic of Austria (‘the Federation’). Austro Control must carry out all the tasks previously entrusted to the Bundesamt für Zivilluftfahrt (Federal Civil Aviation Office), in particular the public authority task of air navigation safety. 15.      The applicant in the main proceedings, Austrian Airlines AG, is a company having its registered office at its home airport of Vienna-Schwechat (Austria). For flights to and from Vienna, it uses Austro Control’s air traffic services and is required to pay charges for them. 16.      On 28 August 2016, a malfunction occurred in the Aeronautical Fixed Telecommunication Network (‘AFTN’) information server operated by Austro Control and forming part of the AFTN Network for the transmission of flight information between the airlines, Austro Control and Eurocontrol. That caused delays in the handling of incoming and outgoing flights as well as to a passenger backlog that also affected the applicant. The applicant then filed a claim of public authority liability (Amtshaftungsklage) against the Federation before the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, Vienna, Austria) seeking compensation for financial damage in the amount of EUR 373 170.46. The applicant substantiates its claim by asserting, inter alia, that Austro Control culpably failed to keep the AFTN server in an operational state. Contesting the dismissal judgment of the Regional Court, the applicant lodged an appeal on points of fact and law (Berufung) with the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) sitting as an appellate court, which set aside the judgment of the Regional Court. The Federation’s appeal before the referring court – the Oberster Gerichtshof (Supreme Court, Austria), the supreme court in civil matters – contests that decision of the Oberlandesgericht Wien (Higher Regional Court, Vienna). 17.      The defendant Federation argues that its liability is precluded simply by virtue of the fact that the provisions of national and EU law governing air navigation serve exclusively the general-public interest in safe air traffic but do not serve to protect the financial interests of air carriers. 18.      In that respect, the referring court refers to its case-law, which provides that, even in cases involving a culpable breach of legal provisions, the damage to be made good is only the damage that the breached rule was intended to prevent or, at the very least, was intended also to prevent. Only then is there the link of unlawfulness between the damage and the breached rule. In order to establish liability, the decisive factor is therefore, according to that case-law, the protective purpose of the breached rule, which must be determined by interpretation. Furthermore, liability can come into consideration only if the breached rule also protects individual interests. As a general rule, that presupposes a particular legal relationship between the injured party and the body whose organs allegedly failed to fulfil a service obligation. On the other hand – according to that case-law – the question of the existence of an objective that also protects individual interests would have to be answered in the negative where the performance of public service tasks affects such a wide and indeterminate number of persons that they would have to be treated in the same way as the general public. In the case of such protection, which produces its effects only indirectly, liability is not incurred even if the act is unlawful and culpable. 19.      In the view of the referring court, Austro Control is, for the purpose of Paragraph 120(1) of the LFG, appointed ‘on an exclusive basis within the meaning of Articles 8 … of Regulation (EC) No 550/2004’ for the purposes of the performance of air navigation services. The Court interpreted that EU law provision in its judgment in Skeyes. (12) In the dispute in the main proceedings underlying that judgment, an air traffic service provider contested a penalty payment that had been imposed on it, upon application by an air carrier, for the purposes of inducing it to reopen the airspace that had been blocked on account of a strike by air traffic controllers. Although the air traffic service provider had argued that an air carrier had neither a ‘subjective right’ to make such an application nor a corresponding (effective) remedy, the Court nevertheless affirmed the right of the airspace user to an effective remedy in cases where an air traffic service provider was in breach of its obligations. In particular, the Court acknowledged that Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004, conferred rights on the airspace user that could be affected by an air traffic service provider. 20.      The referring court is therefore seeking to ascertain whether purely financial interests of the airspace user are also protected by those provisions and can therefore substantiate a claim of public authority liability. In that regard, the referring court states that account must be taken of the fact that the applicant, as an air space user, depends on the services of Austro Control as an air navigation service provider and must pay a charge for the use of air navigation services and facilities when taking off from and landing at airports. According to the referring court, that militates in favour of a specific legal connection with the defendant Federation and against the latter’s argument that the legislation on air traffic safety serves exclusively safety aspects and therefore public interests. 21.      In those circumstances, the Oberster Gerichtshof (Supreme Court, Austria), the supreme court in civil matters, decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling: Is Article 8 of [Regulation No 550/2004] (‘the service provision Regulation’), as amended by [Regulation No 1070/2009], read in conjunction with Article 2(4) of [Regulation No 549/2004] (‘the framework Regulation’), as amended by [Regulation No 1070/2009], to be interpreted as meaning that the provision of air navigation services is also intended to protect every user of air space against purely financial damage resulting from unlawful and culpable negligence on the part of the air navigation service provider responsible for air navigation services? 22.      In the proceedings before the Court, the applicant, Austrian Airlines, the defendant Federation, represented by the Finanzprokuratur (statutory lawyer and legal advisor of the Republic of Austria), Austria, France and the European Commission submitted written observations. With the exception of France, those parties concerned and Belgium took part in the hearing of 21 May 2025 and answered the Court’s oral questions. IV.    Legal assessment A.      Preliminary remarks 23.      The question referred for a preliminary ruling concerns the liability of the State for financial damage suffered by an airspace user on account of a possible breach of obligation by a State controlled air navigation service provider. The assertion of such a (State liability) claim requires that the relevant provisions of secondary EU law on air traffic safety confer rights on the airspace users concerned (13) or, at the very least, are intended to bring about the conferring of such rights by the national legislature. (14) 24.      The findings made in that respect in the judgment in Skeyes (15) are ambivalent, if not misleading. They essentially relate to the downstream question as to whether the Member State’s legal system must provide for an effective legal remedy to protect air carriers. By contrast, the upstream question as to whether or not the potentially breached provisions of secondary EU law confer rights on individuals or, at the very least, pursue a purpose aimed at protecting them, is not specifically examined in that judgment. (16) However, as the referring court also mentions, that case would have actually provided sufficient grounds for such an assessment. That is because the air navigation service provider concerned in that case had expressly argued that the air carriers could not derive ‘subjective rights’ from Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004. (17) 25.      I have to agree with the conclusion that the provisions governing air navigation do not give rise to ‘subjective rights’. 26.      In support of my reasoning, I shall first examine whether the relevant provisions of EU law confer rights on individuals enabling them to bring an action for damages against the State (see heading B). I shall then examine whether, in the light of the case-law on State liability, the purpose of those provisions is at least to bring about the conferring of rights on individuals through transposition into national law. In that context, I shall also examine whether, and to what extent, the Court’s findings in the judgment in Skeyes require clarification (under heading C). B.      State liability under Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004 27.      In so far as provisions of EU law confer rights on individuals, they are entitled to bring judicial proceedings – particularly against the State – to assert those rights (primary legal protection). (18) In the event of a breach of such provisions, an action for damages against the State seeking compensation for damage (secondary legal protection) is also possible under certain conditions. (19) 28.      The provisions at issue are contained in a regulation which is directly applicable in the Member States pursuant to the second paragraph of Article 288 TFEU. However, a regulation may exceptionally require the adoption of national implementing provisions. (20) This is the case with the provisions at issue, which as such do not confer any justiciable rights on individuals. (21) 29.      The overall structure of Regulations Nos 549/2004 and 550/2004, the first of which is referred to as a ‘framework regulation’, already indicates that they require – similarly to directives, as provided for under the third paragraph of Article 288 TFEU – supplementary transposition into national law to give them specific expression. Accordingly, many of their provisions are only definitive or programmatic in nature and leave the Member States a wide margin for transposition. 30.      That is also true in respect of Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004, as regards the provision of air navigation services. 31.      Thus, Article 2(4) of Regulation No 549/2004 is limited to defining the term ‘air navigation services’ as ‘air traffic services; communication, navigation and surveillance services; meteorological services for air navigation; and aeronautical information services’. 32.      For its part, Article 8 of Regulation No 550/2004, entitled ‘Designation of air traffic service providers’, requires only that the Member States ensure, inter alia, ‘the provision of air traffic services on an exclusive basis within specific airspace blocks in respect of the airspace under their responsibility’ and, for this purpose, designate ‘an air traffic service provider holding a valid certificate in the [European Union]’ (paragraph 1), and define the ‘rights and obligations’ of those service providers (paragraph 3). However, their content is not specified in further detail in those provisions. Furthermore, Article 8(4) provides that Member States have discretionary powers in choosing a service provider. 33.      Article 6 of Regulation No 550/2004 in fact provides, in line with the ‘minimum requirements’ to be satisfied under recital 1, that common requirements for the provision of air navigation services are to be established only after the (committee) procedure referred to in Article 5(3) of Regulation No 549/2004. (22) Those common requirements include, inter alia, ‘technical and operational competence and suitability’, ‘systems and processes for safety and quality management’, ‘reporting systems’, ‘quality of services’, ‘liability’, ‘insurance cover’ and ‘security’. Moreover, the ‘general requirements for the provision of air navigation services’ as set out in point 1 of Annex I to Implementing Regulation No 1035/2011, which were cited for the first time by the Commission during the course of the hearing, also do not give further specific expression to the ‘obligations’ referred to in Article 8(3) of Regulation No 550/2004. They require only, in very general terms, that air navigation service providers are to be able to ‘provide their services in a safe, efficient, continuous and sustainable manner’. 34.      Thus, Article 8(1), (3) and (4) of Regulation No 550/2004, read in conjunction with point 1 of Annex I to Implementing Regulation No 1035/2011, contains, in essence, only a mandate addressed to the Member States to establish a national legal framework for the provision of air navigation services, as defined in Article 2(4) of Regulation No 549/2004, to choose or designate the service providers necessary for that purpose, and to define their ‘rights and obligations’. Similarly, Article 7(1), (3) and (4) of Regulation No 550/2004 merely requires Member States, when certifying air navigation service providers that comply with the common requirements set out in Article 6 of that regulation, to issue certificates to those service providers in which their ‘rights and obligations’ are specified. The general definition of air navigation services set down in Article 2(4) of Regulation No 549/2004 (see point 31 of this Opinion) confirms that assessment. 35.      However, neither those provisions nor other provisions set down in the abovementioned regulations give any direct indication of how those rights and obligations are to be organised in terms of the content, let alone whether and to what extent compliance with them also serves to protect airspace users. The organisation of the rights and obligations by the national legislature need only be such as to enable achievement of the – general – objective, provided for in those regulations, of establishing an efficient air transport system with a consistent, high level of safety in air navigation services (23) in the single European sky, (24) in which the provision of air navigation services in a safe, efficient, continuous and sustainable manner is ensured. (25) 36.      I therefore conclude that the abovementioned provisions of EU law, particularly Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004, do not confer any justiciable subjective rights on airspace users. In view of their imprecise content, they cannot serve as an independent basis for a liability action before a national court. (26) 37.      As I shall explain below, the judgment in Skeyes does not call that conclusion into question. C.      Other criteria for State liability in the light of the judgment in Skeyes 38.      However, the breach of a directly applicable provision of EU law and of a subjective right established by it is not a mandatory precondition for State liability. (27) On the contrary, the provision need only be intended to confer rights on individuals. In that regard, the fact that such a provision also serves other objectives, in particular the protection of the public interest, does not preclude it from also having the aim of protecting individuals. (28) Moreover, State liability requires a finding of a sufficiently serious breach of that provision. (29) 39.      It is apparent from the judgment in Skeyes (30) – as Austrian Airlines and the Commission also argue – that, inter alia, the air navigation services referred to in Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004, which are to be provided on a continuous basis, serve not only the public interest in ensuring an efficient and safe single European sky, but also the interests and economic activity of the airspace users, that is to say the air carriers. It is true that the air carriers, including their customers, also benefit from aviation security and have to pay the costs for the air navigation services they generate. (31) Accordingly, in accordance with Article 1(1), read in conjunction with Recital 7  of Regulation No 549/2004, the single European sky initiative pursues the objective of enhancing the current safety standards for air traffic in order to, inter alia, ‘meet the requirements of all airspace users’. In addition, that airspace, as a limited resource, on the one hand, must be organised by means of a coherent pan-European route network and related management systems that are ‘based only on safety, efficiency and technical considerations, for the benefit of all airspace users’; on the other hand, its ‘optimal and efficient use will be possible only if the requirements of all users are taken into account’. 40.      However, the mere fact that the airspace users are mentioned separately in addition to the general public is not sufficient to confer on air carriers a justiciable claim founded on State liability. In particular, the ‘rights and obligations’ of a State-controlled air navigation service provider, which are referred to only in general terms in Article 8 (3) of Regulation No 550/2004, are not sufficient for that purpose. Based on the indeterminate normative content of that provision, it is neither possible to establish a breach by the service provider – attributable to the State – of such a right or obligation, that is to say a defective provision of its service, nor to assess whether such a breach is sufficiently ‘serious’. (32) 41.      At most, the situation would be different in the case  – which the Court is not being called to rule upon in the case at issue – of a complete failure by the national legislature to transpose those provisions of EU law, or of a (manifestly unlawful) complete refusal on the part of a State-controlled service provider to provide air traffic services. The condition recognised in case-law for a State liability claim, namely that the breached provision of EU law is intended to confer rights on individuals (see point 38 of this Opinion), often concerns situations in which the national legislature – contrary to its transposition mandate which, inter alia, is provided for in the provision in question – has either completely failed to establish (within the prescribed period) the necessary rights and obligations in the national legal system, or has implemented them only inadequately. (33) However, that is clearly not the case in the dispute at issue (see point 45 of this Opinion). 42.      Furthermore, the situation underlying the judgment in Skeyes (34) is not comparable to the situation underlying the main proceedings, and hence the Court’s reasoning must be understood solely in the light of the case decided in that judgment. 43.      Firstly, that case concerned interim relief measures rather than an action for damages. More specifically, there was a risk in that case that the airspace user concerned had no effective interim relief available to it under the applicable national law that would enable it effectively to safeguard its interests. That was because the Belgian legislature had failed to define with sufficient clarity the conditions for such a remedy or, as the case may be, jurisdiction – in particular with regard to judicial review of the exercise of the discretionary power enjoyed by public authorities. (35) 44.      Secondly, in its judgment in Skeyes, the Court made no examination of whether, based on their content, the provisions set down in Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004, confer, or are intended to confer, a subjective right on air carriers (see point 24 of this Opinion). In paragraph 37 of that judgment, the Court even expressly states that Regulation No 550/2004 does not grant airspace users a right to a legal remedy. Indeed, in paragraphs 39 to 49 of that judgment, the Court infers only from the regulatory context and the objectives of that regulation, as well as from Article 16 of the Charter, that airspace users enjoy certain rights under Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004. In doing so, however, the Court merely seeks to establish the right of that user to an effective remedy for the purposes of the first paragraph of Article 47 of the Charter, read in conjunction with the second subparagraph of Article 19(1) TEU, in order to be able to review the compatibility of the national rules with the principle of effectiveness under EU law. (36) 45.      Thirdly, by contrast to the situation in the case in Skeyes, there is clearly no lacuna in the legal protection available under national law in the present case, as the parties unanimously agreed at the hearing. The liability of the State for potential breaches of duty on the part of an air navigation service provider is in fact regulated in detail in the national law. Accordingly, as the present case shows, an injured airspace user can bring a judicial action to remedy breaches of the operational safety task and obligation incumbent upon the service provider – pursuant to Paragraph 120(5) of the LFG and Paragraph 2(1) of the ACG-Gesetz – by means of a claim of public authority liability provided for under Paragraph 10(1) of the ACG-Gesetz, read in conjunction with Paragraph 1(1) of the AHG (see points 11 et seq. of this Opinion). 46.      The criteria recognised by the Court for establishing the non-contractual liability of the European Union provided for under the second paragraph of Article 340 TFEU confirm the above statements. That is because the conditions under which the European Union and the Member States may incur liability for damage caused to individuals as a result of a breach of their rights derived from EU law cannot differ. (37) The protection afforded to individuals under liability law cannot vary depending on whether an EU authority or a Member State authority was the party committing the breach and responsible for the ensuing damage. (38) 47.      Hence, in that respect also, it is necessary to demonstrate, inter alia, a sufficiently serious breach of a rule of law which is, at the very least, intended to confer rights on individuals. (39) 48.      However, in the context of the non-contractual liability of the European Union, it would be equally impossible, for the reasons set out in points 38 and 40 of this Opinion, to obtain compensation in proceedings before the EU courts, for a hypothetical (sufficiently serious) breach by an EU institution of the provisions set down in Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004. The imprecise nature of those provisions and the broad margin of discretion thus conferred on the addressee of the provision would thus preclude both the existence of a rule of law serving to protect the rights of individuals and a finding of a sufficiently serious breach or a causal link between the breach and the damage incurred. (40) D.      Interim conclusion 49.      The provisions set down in Article 8 of Regulation No 550/2004, read in conjunction with Article 2(4) of Regulation No 549/2004, do not, therefore, confer third party protection. Hence, they cannot in themselves constitute a basis for a State liability claim of air carriers. At most, such liability arises on the basis of national law that supplements or gives specific expression to the provisions of EU law. The interpretation and application of that national law falls within the exclusive jurisdiction of the referring court. It is incumbent upon the referring court to examine, in particular, whether the national legislation implementing those provisions confers subjective rights capable of giving rise to such liability. In that respect, the referring court must also take into consideration the obligation to make good financial damage. (41) The assessment of whether a breach of a national provision, which could possibly protect third parties, caused financial damage or, as the case may be, whether such damage falls within the scope of the protective purpose of the breached provision, is primarily governed by national law, taking into account the principle of effectiveness under EU law. (42) V.      Conclusion 50.      I propose that the Court of Justice answer the question referred for a preliminary ruling by the Oberster Gerichtshof (Supreme Court, Austria), the supreme court in civil matters, as follows: Article 8 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 (the service provision Regulation), read in conjunction with Article 2(4) 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 (the framework Regulation), does not constitute an appropriate basis for an action for damages against the State brought by an airspace user seeking compensation for financial damage suffered by it as a result of a breach of obligation on the part of an air navigation service provider. Such an action may, at most, be based on national provisions transposing those EU law provisions. It is a matter for the national courts to interpret those national provisions, taking into account the principle of effectiveness under EU law. 1      Original language: German. 2      Judgment of 2 June 2022 (C‑353/20, EU:C:2022:423). 3      See, to that effect, judgments of 19 December 2019, Deutsche Umwelthilfe (C‑752/18, EU:C:2019:1114, paragraph 54 and the case-law cited). 4      See, to that effect, judgments of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 20 et seq. and 39), and of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters) (C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 98 et seq., in particular paragraph 101 and the case-law cited). On the necessity for ‘the effective judicial protection of individuals’ rights under EU law’, see only the judgments of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 167 and 168), and of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 69 and the case-law cited). 5      Judgment of 2 June 2022 (C‑353/20, EU:C:2022:423, paragraph 35 et seq.). 6      Regulation of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation) (OJ 2004 L 96, p. 1), as amended by Regulation No 1070/2009 of the European Parliament and of the Council of 21 October 2009 (OJ 2009 L 300, p. 34). 7      Regulation of the European Parliament and of the Council of 10 March 2004 on the provision of air navigation services in the single European sky (OJ 2004 L 96, p. 10), as amended by Regulation (EC) No 1070/2009 of the European Parliament and of the Council of 21 October 2009 (OJ 2009 L 300, p. 34). 8      Commission Implementing Regulation of 17 October 2011 laying down common requirements for the provision of air navigation services and amending Regulations (EC) No 482/2008 and (EU) No 691/2010 (OJ 2011 L 271, p. 23); subsequently replaced by Commission Implementing Regulation (EU) 2017/373 of 1 March 2017 laying down common requirements for providers of air traffic management/air navigation services and other air traffic management network functions and their oversight, repealing Regulation (EC) No 482/2008, Implementing Regulations (EU) No 1034/2011, (EU) No 1035/2011 and (EU) 2016/1377 and amending Regulation (EU) No 677/2011 (OJ 2017 L 62, p. 1), which entered into force only as of 2 January 2020 and does not apply to the present case. 9      BGBl. No 253/1957. 10      BGBl. No 898/1993. 11      BGBl. No 20/1949. 12      Judgment of 2 June 2022 (C‑353/20, EU:C:2022:423). 13      Since the judgment of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraphs 20 and 39) it has been recognised that such a State liability claim can be based also on the breach of a directly applicable provision of EU law. 14      See only the judgment of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution) (C‑61/21, EU:C:2022:1015, paragraph 44 et seq.). 15      Judgment of 2 June 2022 (C‑353/20, EU:C:2022:423). 16      In that respect, the Court limited itself to rather vague findings that, firstly, in view of the context and the objective pursued by Regulation No 550/2004 ‘the obligations referred to in Article 8 of that regulation, read in conjunction with Article 2(4) of Regulation No 549/2004, constitute services provided in the interest of airspace users and may therefore confer on them rights’; secondly that ‘airspace users such as airlines enjoy rights conferred by the relevant EU secondary law’; and, thirdly, that the user ‘enjoys certain rights’ under those provisions; see judgment of 2 June 2022 (C‑353/20, EU:C:2022:423, paragraphs 45, 46 and 49; emphasis added). 17      See judgment of 2 June 2022, Skeyes (C‑353/20, EU:C:2022:423, paragraph 22). 18      As regards the right of individuals to rely on directly applicable provisions of a directive in judicial proceedings against the State, see the judgment handed down as far back as 19 January 1982, Becker (8/81, EU:C:1982:7, paragraph 17 et seq.). 19      See judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 31 et seq.); and of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraphs 20 and 39). For a summary, see judgment of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution) (C‑61/21, EU:C:2022:1015, paragraphs 46 and 47 and the case-law cited). 20      See, to that effect, judgments of 11 January 2001, Monte Arcosu (C‑403/98, EU:C:2001:6, paragraphs 26 to 28); of 14 April 2011, Vlaamse Dierenartsenvereniging and Janssens (C‑42/10, C‑45/10 and C‑57/10, EU:C:2011:253, paragraph 47 et seq.); and of 30 May 2024, Expedia (C‑663/22, EU:C:2024:433, paragraphs 40 to 42 and the case-law cited). 21      See, with regard to the opposite situation, Opinion of Advocate General Rantos in Electrabel and Others (C‑633/23, EU:C:2025:131, points 34 to 36). 22      See Commission Implementing Regulation No 1035/2011 (footnote 8 above). 23      Recitals 1 and 3 of Regulation No 549/2004. 24      Article 1(1) of Regulation No 549/2004. 25      See Recital 4 and Article 1(1) of Regulation No 550/2004: ‘this Regulation concerns the provision of air navigation services in the single European sky. The objective of this Regulation is to establish common requirements for the safe and efficient provision of air navigation services in the [European Union].’ 26      See, to that effect, the judgment of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution) (C‑61/21, EU:C:2022:1015, paragraph 46 et seq.). On the comparable structure of Article 3 of Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes (OJ 1994 L 135, p. 5), as amended by Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009 (OJ 2009 L 68, p. 3) as regards the protection of depositors, see the judgments of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606, paragraph 40 et seq.); of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807, paragraph 90 et seq.); and of 25 March 2021, Balgarska Narodna Banka (C‑501/18, EU:C:2021:249, paragraph 51 et seq., particularly paragraph 57). See also the Opinion of Advocate General Stix-Hackl in Paul and Others (C‑222/02, EU:C:2003:637, points 75 et seq., in which she also denies the direct effect of that provision); in that regard, see also my Opinion in Kantarev (C‑571/16, EU:C:2018:412, points 78 et seq.) as well as in Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution) (C‑61/21, EU:C:2022:359, points 82 et seq.). Equally, with regard to liability for medical devices, see the judgment of 16 February 2017, Schmitt (C‑219/15, EU:C:2017:128, paragraph 55 et seq.). Distinguishing from the case of protection for offerors in the context of takeover bids, see the judgment of 10 December 2020, Euromin Holdings (Cyprus) (C‑735/19, EU:C:2020:1014, paragraph 79 et seq.). E contrario, with regard to primary legal protection in the context of direct effect, see also, judgments of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraphs 18 and 19 and the case-law cited); and of 21 December 2023, Papier Mettler Italia (C‑86/22, EU:C:2023:1023, paragraph 76 and 77). 27      See, fundamentally, the judgment of 9 November 1995, Francovich (C‑479/93, EU:C:1995:372, paragraph 10 et seq.). See also, judgments of 10 December 2020, Euromin Holdings (Cyprus) (C‑735/19, EU:C:2020:1014, paragraph 81 and the case-law cited), and of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution) (C‑61/21, EU:C:2022:1015, paragraph 47 and the case-law cited); as well as my Opinion in Kantarev (C‑571/16, EU:C:2018:412, point 88 and the case-law cited), and in Euromin Holdings (Cyprus) (C‑735/19, EU:C:2020:697, point 96). 28      See, to that effect, the judgment of 8 October 1996, Dillenkofer and Others (C‑178/94, C‑179/94 and C‑188/94 to C‑190/94, EU:C:1996:375, paragraph 39), as well as my Opinion in Euromin Holdings (Cyprus) (C‑735/19, EU:C:2020:697, point 92). 29      See, to that effect, judgments of 28 July 2016, Tomášová (C‑168/15, EU:C:2016:602, paragraph 22 and the case-law cited); of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807, paragraph 94); of 10 December 2020, Euromin Holdings (Cyprus) (C‑735/19, EU:C:2020:1014, paragraph 79); and of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution) (C‑61/21, EU:C:2022:1015, paragraph 44 et seq.). See also my Opinion in Euromin Holdings (Cyprus) (C‑735/19, EU:C:2020:697, points 87, 88, 92 and 94), as well as in Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution) (C‑61/21, EU:C:2022:359, points 72 et seq.). 30      Judgment of 2 June 2022 (C‑353/20, EU:C:2022:423, paragraph 37 et seq., in particular paragraphs 45, 46 and 49). 31      See judgment of 2 June 2022, Skeyes (C‑353/20, EU:C:2022:423, paragraph 37 et seq., in particular paragraphs 42 and 46, with reference, inter alia, to recital 22 and Article 15 of Regulation No 550/2004). 32      On that criterion, see only the Opinion of Advocate General Ćapeta in Dyson and Others v Commission (C‑122/22 P, EU:C:2023:552, points 65 et seq.). 33      See judgment of 9 November 1995, Francovich (C‑479/93, EU:C:1995:372, paragraph 10 et seq.). See also, for example, the situation underlying the judgment of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807, paragraph 89 et seq.). In paragraphs 102 and 104, the Court thus concludes only that the EU legislation in question ‘aims, inter alia, to protect depositors’ and is ‘intended to confer rights on individuals’ (in the French version: ‘vise notamment à protéger les déposants’ and ‘ayant pour objet de conférer des droits aux particuliers’; emphasis added). In that regard, see also my Opinions in Kantarev (C‑571/16, EU:C:2018:412, points 78 et seq., in particular points 81 and 82); as well as in Euromin Holdings (Cyprus) (C‑735/19, EU:C:2020:697, point 97, with reference to the need for provisions of national administrative, civil and procedural law to regulate exactly how the necessary protection is to be ensured). 34      Judgment of 2 June 2022 (C‑353/20, EU:C:2022:423, paragraph 37 et seq.). 35      Judgment of 2 June 2022, Skeyes (C‑353/20, EU:C:2022:423, paragraph 56, noting that judicial review of the exercise of the discretionary power enjoyed by an administrative authority or a State-controlled air navigation service provider could potentially fall outside the jurisdiction of the civil court seised of the dispute). 36      See judgment of 2 June 2022, Skeyes (C‑353/20, EU:C:2022:423, paragraph 37 et seq., in particular paragraphs 48, 50, 51, and 54 to 56). 37      Judgment of 4 July 2000, Bergaderm and Goupil v European Commission (C‑352/98 P, EU:C:2000:361, paragraph 39 et seq., with reference, inter alia, to the judgment of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79). 38      See, for further details, the Opinion of Advocate General Ćapeta in Dyson and Others v Commission (C‑122/22 P, EU:C:2023:552, points 64 et seq.). 39      See, by analogy with the criteria for direct effect, the judgment of 5 March 2024, Kočner v Europol (C‑755/21 P, EU:C:2024:202, paragraphs 117 to 120 and the case-law cited). 40      For specific details on the conditions for establishing the non-contractual liability of the European Union, see the Opinion of Advocate General Ćapeta in Dyson and Others v Commission (C‑122/22 P, EU:C:2023:552, point 65 et seq.). 41      Thus, for example, where a provision of a directive conferring rights on individuals is breached, the financial damage resulting directly from that breach must be made good by means of State liability; see judgment of 14 March 2013, Leth (C‑420/11, EU:C:2013:166, paragraph 32 et seq., in particular paragraph 44); as well as my Opinion in Leth (C‑420/11, EU:C:2012:701, point 32 et seq.). 42      See judgments of 5 June 2014, Kone and Others (C‑557/12, EU:C:2014:1317, paragraph 29 et seq.), and of 12 December 2019, Otis Gesellschaft and Others (C‑435/18, EU:C:2019:1069, paragraph 25 et seq.). See also my Opinions in Kone and Others (C‑557/12, EU:C:2014:45, point 31 et seq.); and in Otis Gesellschaft and Others (C‑435/18, EU:C:2019:651, point 47 et seq.).