Judgment of the Court of 5 November 2002 in Case C-468/98: Commission of the European Communities v Kingdom of Sweden (Failure by a Member State to fulfil its obligations — Conclusion and application by a Member State of a bilateral "open skies" agreement with the United States of America — Secondary legislation governing the internal air transport market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/92, 2409/92 and 95/93) — External competence of the Community — Article 52 of the EC Treaty (now, after amendment, Article 43 EC) — Article 5 of the EC Treaty (now Article 10 EC))
Date: 2002-12-21
Institutions: Court of Justice
Subjects: European Commission, Sweden, action for failure to fulfil an obligation, air transport, domestic market, ticket

21.12.2002

EN

Official Journal of the European Communities

C 323/3

JUDGMENT OF THE COURT

of 5 November 2002

in Case C-468/98: Commission of the European Communi-
ties v Kingdom of Sweden (1)

(Failure by a Member State to fulfil
its obligations —
Conclusion and application by a Member State of a bilateral
‘open skies’ agreement with the United States of America —
Secondary legislation governing the internal air transport
market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/
92, 2409/92 and 95/93) — External competence of the
Community — Article 52 of the EC Treaty (now, after
amendment, Article 43 EC) — Article 5 of the EC Treaty
(now Article 10 EC))

(2002/C 323/03)

(Language of the case: Swedish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-468/98, Commission of the European Communities
(Agents: F. Benyon and C. Tufvesson) v Kingdom of Sweden
(Agent: L. Nordling), supported by Kingdom of the Netherlands
(Agents: M. A. Fierstra and J. van Bakel): Application for:

— as its principal claim, a declaration that, by having
individually negotiated, initialled and concluded in 1995
an ‘open skies’ agreement with the United States of
America in the field of air transport, the Kingdom of
Sweden has failed to fulfil its obligations under the EC
Treaty, and in particular Articles 5 (now Article 10 EC)
and 52 (now, after amendment, Article 43 EC) thereof,
and also under secondary law adopted pursuant
to
that Treaty, and in particular Council Regulation (EEC)
No 2407/92 of 23 July 1992 on licensing of air carriers
(OJ 1992 L 240, p. 1), Council Regulation (EEC) No 2408/
92 of 23 July 1992 on access for Community air carriers
to intra-Community air routes (OJ 1992 L 240, p. 8),
Council Regulation (EEC) No 2409/92 of 23 July 1992
on fares and rates for air services (OJ 1992 L 240, p. 15),
Council Regulation (EEC) No 2299/89 of 24 July 1989
on a code of conduct
for computerised reservation
systems (OJ 1989 L 220, p. 1), as amended by Council
Regulation (EEC) No 3089/93 of 29 October 1993 (OJ
1993 L 278, p. 1), and Council Regulation (EEC) No 95/
93 of 18 January 1993 on common rules for the
allocation of slots at Community airports (OJ 1993 L 14,
p. 1); and,

— further and in the alternative, a declaration that, in so far
as the 1995 agreement cannot be regarded as having
radically amended and thus replaced the agreements
previously concluded, the Kingdom of Sweden has, by
not rescinding those provisions of the said previously-

concluded agreements which are incompatible with the
EC Treaty, especially Article 52 thereof, and with the
applicable secondary law, or by failing to take all legally
possible steps to that end, failed to comply with its
obligations under Article 234 of the EC Treaty (now, after
amendment, Article 307 EC) as adapted by Article 6 of
the Act concerning the conditions of accession of the
Republic of Austria, the Republic of Finland and the
Kingdom of Sweden and the adjustments to the Treaties
on which the European Union is founded (OJ 1994
C 241, p. 21 and OJ 1995 L 1, p. 1),

the Court, composed of: J.-P. Puissochet, President of the Sixth
Chamber, acting for the President, R. Schintgen (President of
Chamber), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann,
V. Skouris (Rapporteur), F. Macken, N. Colneric, S. von Bahr
and J.N. Cunha Rodrigues,
Judges; A. Tizzano, Advocate
General; H. von Holstein, Deputy Registrar, and D. Louterman-
Hubeau, Head of Division, has given a judgment on 5 Novem-
ber 2002, in which it:

1. Declares that, by entering into or maintaining in force, despite
the renegotiation of the air transport agreement of 16 December
1944 between the Kingdom of Sweden and the United States
of America, international commitments with the United States
of America

— concerning air fares and rates charged by carriers desig-
nated by the United States of America on intra-Com-
munity routes,

— concerning computerised reservation systems offered for

use or used in Swedish territory, and

— recognising the United States of America as having the
right to withdraw, suspend or limit traffic rights in cases
where air carriers designated by the Kingdom of Sweden
are not owned by the latter or by Swedish nationals, the
Kingdom of Sweden has failed to fulfil its obligations
under Article 5 of the EC Treaty (now Article 10 EC) and
Article 52 of the EC Treaty (now, after amendment,
Article 43 EC) and under Council Regulation (EEC)
No 2409/92 of 23 July 1992 on fares and rates for air
services and Council Regulation (EEC) No 2299/89 of
24 July 1989 on a code of conduct for computerised
reservation systems, as amended by Council Regulation
(EEC) No 3089/93 of 29 October 1993;

2. Dismisses the remainder of the application;

3. Orders the Kingdom of Sweden to pay the costs;

4. Orders the Kingdom of the Netherlands to bear its own costs.

(1) OJ C 71 of 13.3.1999.