# C_2005057EN.01001901.xml

| 5.3.2005 | EN | Official Journal of the European Union | C 57/19 |
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5.3.2005

EN

Official Journal of the European Union

C 57/19

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Action brought on 23 December 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-523/04)

(2005/C 57/34)

Language of the case: Dutch

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 23 December 2004 by the Commission of the European Communities, represented by Mikko Huttunen and Wouter Wils, acting as Agents.

The applicant claims that the Court should:

| 1. | Declare that, by entering into international arrangements with the United States of America or, notwithstanding the review of the agreement on air traffic of 3 April 1957 between the Kingdom of the Netherlands and the United States of America, enforcing obligations






  — | concerning the fares of airline companies specified by the United States on intra-Community routes; |
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1.

Declare that, by entering into international arrangements with the United States of America or, notwithstanding the review of the agreement on air traffic of 3 April 1957 between the Kingdom of the Netherlands and the United States of America, enforcing obligations

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concerning the fares of airline companies specified by the United States on intra-Community routes;

| — | concerning the computerised reservation systems offered or in use in Netherlands territory, |
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concerning the computerised reservation systems offered or in use in Netherlands territory,

| — | whereby the right is conferred on the United States to withdraw, curtail or restrict transport rights where the airline companies specified by the Kingdom of the Netherlands are not in the hands of the latter or of Netherlands nationals, |
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whereby the right is conferred on the United States to withdraw, curtail or restrict transport rights where the airline companies specified by the Kingdom of the Netherlands are not in the hands of the latter or of Netherlands nationals,

the Kingdom of the Netherlands has failed to fulfil its obligations under Article 5 of the EC Treaty (now Article 10 EC), Article 52 of the EC Treaty (now, after amendment, Article 43 EC) and Council Regulations (EEC) Nos 2409/92 (1) of 23 July 1992 on fares and rates for air services, and 2299/89 (2) of 24 July 1989 on a code of conduct for computerised reservation systems, as amended by Council Regulation (EEC) No 3089/93 (3) of 29 October 1993;

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| 2. | Order the Kingdom of the Netherlands to pay the costs. |
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2.

Order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

A.   Existence of a new agreement

| — | The amendments made in 1992 to the 1957 agreement created the framework for closer cooperation between the United States and the Kingdom of the Netherlands which entail appreciable new obligations for that country. |
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The amendments made in 1992 to the 1957 agreement created the framework for closer cooperation between the United States and the Kingdom of the Netherlands which entail appreciable new obligations for that country.

| — | In light of the 1992 amendments the 1957 agreement was revised in its entirety. The fact that a number of provisions of that agreement were not formally amended in 1992 or only underwent inessential editorial changes, does not therefore alter the fact that the obligations flowing from those provisions were reaffirmed on the occasion of that review. In such a situation the Member States are not only not authorised to assume new obligations, but moreover may not operate such arrangements if they run counter to Community law. |
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In light of the 1992 amendments the 1957 agreement was revised in its entirety. The fact that a number of provisions of that agreement were not formally amended in 1992 or only underwent inessential editorial changes, does not therefore alter the fact that the obligations flowing from those provisions were reaffirmed on the occasion of that review. In such a situation the Member States are not only not authorised to assume new obligations, but moreover may not operate such arrangements if they run counter to Community law.

B.   Infringement of an exclusive external competence of the Community within the meaning of the AETR judgment

| — | In 1991 the Netherlands and the United States added an annex to the 1957 agreement incorporating the CRS (computerised reservation systems) principles, including those concerning the availability or use of the CRS in Netherlands territory. On review in 1992 of the 1957 agreement the Netherlands applied that annex. In so doing the Netherlands infringed the Community's exclusive external competence flowing from Regulation No 2299/89. |
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In 1991 the Netherlands and the United States added an annex to the 1957 agreement incorporating the CRS (computerised reservation systems) principles, including those concerning the availability or use of the CRS in Netherlands territory. On review in 1992 of the 1957 agreement the Netherlands applied that annex. In so doing the Netherlands infringed the Community's exclusive external competence flowing from Regulation No 2299/89.

C.   Infringement of Article 52 of the Treaty

| — | Community airline companies in the Netherlands may always be excluded from application of the agreement on air traffic between the Kingdom of the Netherlands and the United States, whereas that agreement is automatically applicable to Netherlands airline companies. Community airline companies are thus discriminated against since, in the host State, that is to say the Kingdom of the Netherlands, they are not accorded national treatment. |
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Community airline companies in the Netherlands may always be excluded from application of the agreement on air traffic between the Kingdom of the Netherlands and the United States, whereas that agreement is automatically applicable to Netherlands airline companies. Community airline companies are thus discriminated against since, in the host State, that is to say the Kingdom of the Netherlands, they are not accorded national treatment.

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(1)  OJ 1992 L 240, p. 15.

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(2)  OJ 1989 L 220, p. 1.

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(3)  OJ 1993 L 278, p. 1.

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