Judgment of the Court of 5 November 2002 in Case C-476/98: Commission of the European Communities v Federal Republic of Germany (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, Germany, action for failure to fulfil an obligation, air transport, single market, ticket

C 323/8

EN

Official Journal of the European Communities

21.12.2002

JUDGMENT OF THE COURT

of 5 November 2002

in Case C-476/98: Commission of the European Communi-
ties v Federal Republic of Germany (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 323/08)

(Language of the case: German)

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

In Case C-476/98, Commission of the European Communities
(Agents: J. Sack and F. Benyon) v Federal Republic of Germany
(Agent: C.-D. Quassowski, assisted by G. Schohe), supported
by Kingdom of the Netherlands (Agents: M. A. Fierstra and
J. van Bakel): Application for:

initialled and concluded,

— as its principal claim, a declaration that, by having
individually negotiated,
in
1994 and 1996, ‘open skies’ agreements with the United
States of America in the field of air transport, the Federal
Republic of Germany 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 Regu-
lation (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 1994 and 1996
agreements cannot be regarded as having radically
amended and thus replaced the agreements previously
concluded, the Federal Republic of Germany 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 second-
ary 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) and, in relation to the
agreements concluded after the entry into force of the
Treaty, with its obligations under secondary law,

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
Judges; A. Tizzano, Advocate
and J.N. Cunha Rodrigues,
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 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 German 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 Federal Republic of
Germany are not owned by the latter or by German
nationals,

the Federal Republic of Germany 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
for computerised reservation systems, as
amended by Council Regulation (EEC) No 3089/93 of
29 October 1993;

conduct

2. Dismisses the remainder of the application;

3. Orders the Federal Republic of Germany to pay the costs;

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

(1) OJ C 71 of 13.3.1999.