Judgment of the Court of 5 November 2002 in Case C-469/98: Commission of the European Communities v Republic of Finland (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, Finland, action for failure to fulfil an obligation, air transport, domestic market, ticket

C 323/4

EN

Official Journal of the European Communities

21.12.2002

JUDGMENT OF THE COURT

of 5 November 2002

in Case C-469/98: Commission of the European Communi-
ties v Republic of Finland (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 323/04)

(Language of the case: Finnish)

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

In Case C-469/98, Commission of the European Communities
(Agents: A. Rosas and F. Benyon) v Republic of Finland (Agent:
T. Pynnä, assisted by R. Luoma), 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
Finland 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,
to
and also under secondary law adopted pursuant
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
for computerised reservation
on a code of conduct
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, 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 Finland has, by not rescinding

those provisions of the said previously-concluded agree-
ments 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 to comply with its obligations under Article 234 of
the EC Treaty (now, after amendment, Article 307 EC)
and under 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; Advocate General,
A. Tizzano; H. von Holstein, Deputy Registrar, and D. Louter-
man-Hubeau, Head of Division, has given a judgment on
5 November 2002, in which it:

1. Declares that, by entering into or maintaining in force, despite
the renegotiation of the air transport agreement of 29 March
1949 and the protocol of 12 May 1980 between the Republic
of Finland 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 Finnish territory, and

— recognising the United States of America as having the
right to prohibit or revoke the exercise of traffic rights in
cases where air carriers designated by the Republic of
Finland are not owned by the latter or by Finnish
nationals, the Republic of Finland 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 Finland to pay the costs;

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

(1) OJ C 71 of 13.3.1999.