Judgment of the Court of 5 November 2002 in Case C-475/98: Commission of the European Communities v Republic of Austria (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: Austria, European Commission, action for failure to fulfil an obligation, air transport, single market, ticket

21.12.2002

EN

Official Journal of the European Communities

C 323/7

JUDGMENT OF THE COURT

of 5 November 2002

in Case C-475/98: Commission of the European Communi-
ties v Republic of Austria (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 323/07)

(Language of the case: German)

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

In Case C-475/98, Commission of the European Communities
(Agents: J. Sack and F. Benyon) v Republic of Austria (Agent:
C. Stix-Hackl), 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 Republic of
Austria 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,

— in the alternative, in relation to part of its principal claim,
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
Republic of Austria has, by not rescinding those pro-
visions of the said agreements which are incompatible
with the EC Treaty, especially Article 52 thereof, and with

secondary law, or by failing to take all legally possible
steps to that end, failed, in relation to the agreements
concluded before the EC Treaty entered into force, to
comply with its obligations under Article 234 of the EC
Treaty (now, after amendment, Article 307 EC) in the
version resulting from 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
and 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 between the
Republic of Austria and the United States of America of
16 March 1989, 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 Austrian 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 Republic of Austria
are not owned by the latter or by Austrian nationals,

the Republic of Austria 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 Republic of Austria to pay the costs;

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

(1) OJ C 71 of 13.3.1999.