Judgment of the Court of 5 November 2002 in Case C-472/98: Commission of the European Communities v Grand Duchy of Luxembourg (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, Luxembourg, action for failure to fulfil an obligation, air transport, domestic market, ticket

C 323/6

EN

Official Journal of the European Communities

21.12.2002

JUDGMENT OF THE COURT

of 5 November 2002

in Case C-472/98: Commission of the European Communi-
ties v Grand Duchy of Luxembourg (1)

agreements previously concluded, the Grand Duchy of
Luxembourg 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 secondary law, or by failing to take all
legally possible steps to that end, failed to comply with
its obligations under Article 5 of the Treaty and under
secondary law,

(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))

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:

(2002/C 323/06)

(Language of the case: French)

1. Declares that, by entering into or maintaining in force, despite
the renegotiation of the air transport agreement between the
Grand Duchy of Luxembourg and the United States of America
of 19 August 1986,
international commitments with the
United States of America

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

In Case C-472/98, Commission of the European Communities
(Agent: F. Benyon) v Grand Duchy of Luxembourg (Agent:
P. Steinmetz), 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,
and applied an ‘open skies’ agreement with the United
States of America in the field of transport, the Grand
Duchy of Luxembourg 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 and, in part, in addition, a declaration
that, in so far as the 1995 agreement cannot be regarded
as having radically amended and thus replaced the

— 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 Luxembourg 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 Grand Duchy of
Luxembourg are not owned by the latter or by Luxembourg
nationals,

the Grand Duchy of Luxembourg 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 Grand Duchy of Luxembourg to pay the costs;

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

(1) OJ C 71 of 13.3.1999.