Opinion of the Advocate General — ECLI:EU:C:2006:717
Date: 2006-11-16
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Principles, objectives and tasks of the Treaties;Transport
Procedure: Action for failure to fulfil obligations - successful
Origin: Netherlands

Summary of the Judgment 1. Member States – Obligations – Failure to fulfil obligations – Justification – Principle of the protection of legitimate expectations (Art. 226 EC) 2. International agreements – Agreements concluded by the Member States – Agreements predating the EC Treaty – Article 307 EC – Scope (Art. 307 EC) 3. Transport – Air transport – Pricing of intra-Community routes and computerised reservation systems used in the Member States (EC Treaty, Art. 5 (now Art. 10 EC); Council Regulations Nos 2299/89 and 2409/92) 4. Freedom of movement for persons – Freedom of establishment – Bilateral air transport agreement between a Member State and a non-Member State (EC Treaty, Art. 52 (now, after amendment, Art. 43 EC)) 1. The procedure for a failure on the part of a Member State to fulfil its obligations is based on the objective finding that a Member State has failed to fulfil its obligations under Community law and the principle of protection of legitimate expectations cannot be relied on by a Member State in order to preclude an objective finding of a failure on its part to fulfil its obligations under the Treaty or secondary legislation, since to admit that justification would run counter to the aim pursued by the procedure under Article 226 EC. (see para. 28) 2. The amendments made following the accession of a Member State to the European Communities to a bilateral air transport agreement entered into between that Member State and a non-Member country indicate a renegotiation of the agreement as a whole. Whilst some provisions of that agreement were not formally modified by those amendments or were subject only to marginal changes in drafting, the commitments arising from those provisions were none the less confirmed during the renegotiation. In such a case, the Member States are prevented not only from contracting new international commitments but also from maintaining such commitments in force if they infringe Community law. (see para. 51) 3. Article 5 of the Treaty (now Article 10 EC) requires Member States to facilitate the achievement of the Community’s tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty. In the area of external relations, the Community’s tasks and the objectives of the Treaty would be compromised if Member States were able to enter into international commitments containing provisions capable of affecting rules adopted by the Community or of altering their scope. By maintaining in force, despite the renegotiation of a bilateral air transport agreement entered into with a non-Member country, international agreements concerning air fares and rates charged by carriers designated by that State on intra-Community routes and concerning computerised reservation systems offered for use or used on national territory, a Member State fails to fulfil its obligations under Article 5 of the Treaty and under Regulations No 2409/92 on fares and rates for air services and 2299/89 on a code of conduct for computerised reservation systems. (see paras 74-76) 4. A clause contained in a bilateral air transport agreement entered into by a Member State and a non-Member State which permits the non-Member State, inter alia, to withhold or revoke a concession or authorisation to an airline designated by the Member State, but of which a substantial part of the ownership and effective control is not vested in that Member State or its nationals, is contrary to Article 52 of the Treaty (now, after amendment, Article 43 EC). Such a clause undeniably affects airlines established in the Member State of which a substantial part of the ownership and effective control is vested either in a Member State other than the host State or in nationals of such a Member State. The latter so-called Community airlines may always be excluded from the benefit of the bilateral agreement, while that benefit is assured to the national airlines of which a substantial part of the ownership and effective control is vested in the Member State or its nationals. Consequently, those airlines suffer discrimination which prevents them from benefiting from the treatment which the host Member State accords to its own nationals. (see paras 86-90)