CELEX: C1999/071/17
Language: en
Date: 1999-03-13 00:00:00
Title: Action brought on 18 December 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-471/98)

C 71/10                EN                Official Journal of the European Communities                                  13.3.1999
2. Declare, in the alternative, in so far as the agreement                  Regulation (EEC) No 2408/92 (2) of 23 July 1992
     concluded in 1995 cannot be regarded as substantially                  on access for Community air carriers to
     amending the previous agreements and hence replacing                   intra-Community routes, Council Regulation
     them, that the Republic of Finland is in breach of                     (EEC) No 2409/92 (3) of 23 July 1992 on fares and
     Article 234 of the EC Treaty, having regard also to                    rates for air services, Council Regulation (EEC)
     Article 6 of the Act of Accession of Austria, Finland                  No 2299/89 (4) of 24 July 1989, as amended by
     and Sweden, by not eliminating the provisions of those                 Regulation No 3089/93 (5) of 29 October 1993, on
     earlier agreements which are contrary to the Treaty, in                a code of conduct for computerised reservation
     particular Article 52 thereof, and to secondary law                    systems,     and    Council     Regulation     (EEC)
     based thereon, and by not taking all possible legal                    No 95/93 (6) of 18 January 1993 on common rules
     measures to eliminate those provisions; and                            for the allocation of slots at Community airports;
3. Order the Republic of Finland to pay the costs.                      Ð in the alternative, and additionally, declare, in so
                                                                            far as it considers that the 1995 agreement does
                                                                            not radically amend and therefore does not replace
                                                                            the agreements concluded previously, that Belgium
The pleas in law and main arguments are the same as in
                                                                            is in breach of its obligations under Article 5 of
Case C-471/98 (7).
                                                                            the Treaty and under secondary law in not
                                                                            rescinding, in those previous agreements, the
(1) OJ L 240, 24.8.1992, p. 1.                                              provisions which are incompatible with the Treaty,
(2) OJ L 240, 24.8.1992, p. 8.                                              in particular Article 52, and with secondary law,
(3) OJ L 240, 24.8.1992, p. 15.                                             or by not taking all possible legislative measures to
(4) OJ L 220, 29.7.1989, p. 1.                                              that end;
(5) OJ L 278, 11.11.1993, p. 1.
(6) OJ L 14, 22.1.1993, p. 1.
(7) See p. 10 of this Official Journal.
                                                                    (2) order the Kingdom of Belgium to pay the costs.
                                                                    Pleas in law and main arguments adduced in support:
Action brought on 18 December 1998 by the Commission
of the European Communities against the Kingdom of
                               Belgium
                                                                    Ð It is impossible, through the establishment of a
                         (Case C-471/98)                                common market in air transport, pursuant to
                                                                        Article 84(2) of the EC Treaty, to secure in full the
                          (1999/C 71/17)                                objective of a balanced market featuring undistorted
                                                                        competition unless the Community concludes with the
                                                                        United States an agreement covering areas such as
                                                                        those dealt with in the bilateral agreement in question,
An action against the Kingdom of Belgium was brought                    since the Community alone is competent in this
before the Court of Justice of the European Communities                 regard, pursuant to Opinion 1/76.
on 18 December 1998 by the Commission of the
European Communities, represented by Frank Benyon,
Legal Adviser, acting as Agent, with an address for service
in Luxembourg at the office of Carlos Gómez de la Cruz,
Wagner Centre, Kirchberg.                                           Ð The bilateral Belgo-American agreement affects the
                                                                        objectives, scope and operation of the internal market
                                                                        in air transport as established by all of the joint
                                                                        Community rules which made its creation possible.
The applicant claims that the Court should:                             That agreement governs in particular the granting of
                                                                        rights of access to and departure from the internal
                                                                        market and the granting of rights to carriers from
(1) Ð declare that, by negotiating, signing and                         non-member countries within the Community.
         concluding in 1995, and applying individually, an
         open skies' agreement with the United States in
         the air transport sector, Belgium is in breach of its
         obligations under the Treaty, in particular                    Pursuant to the judgment in Case 22/70 (AETR')
         Articles 5 and 52 thereof, and under secondary                 (confirmed in Opinions 2/92 and 1/94), Member
         law adopted pursuant to the Treaty, in particular              States can no longer assume obligations towards
         Council Regulation (EEC) No 2407/92 (1) of                     non-member countries, whether individually or
         23 July 1992 on licensing of air carriers, Council             collectively, if those obligations affect the rules of
 ---pagebreak--- 13.3.1999              EN               Official Journal of the European Communities                                       C 71/11
     the internal Community market and result in                   The applicant claims that the Court should:
     discrimination or distort competition. Furthermore,
     such bilateral agreements concern questions coming
     under domestic legislation on the treatment to be
     accorded to undertakings which have their registered
     office outside the Community or in third countries.           (1) Ð declare that, by negotiating, signing and
                                                                            concluding in 1995, and applying individually, an
                                                                            open skies' agreement with the United States in
                                                                            the air transport sector, Luxembourg is in breach
Ð Agreements with a non-member country having such                          of its obligations under the Treaty, in particular
     effects on the internal market in air transport cannot                 Articles 5 and 52 thereof, and under secondary
     be concluded outside the Community framework.                          law adopted pursuant to the Treaty, in particular
                                                                            Council Regulation (EEC) No 2407/92 (1) of
                                                                            23 July 1992 on licensing of air carriers, Council
                                                                            Regulation (EEC) No 2408/92 (2) of 23 July 1992
                                                                            on access for Community air carriers to
Ð The provisions on the designation of carriers                             intra-Community routes, Council Regulation
     constitute an infringement of Article 52 of the Treaty                 (EEC) No 2409/92 (3) of 23 July 1992 on fares and
     (see the arguments in Case C-466/98).                                  rates for air services, Council Regulation (EEC)
                                                                            No 2299/89 (4) of 24 July 1989, as amended by
                                                                            Regulation No 3089/93 (5) of 29 October 1993, on
                                                                            a code of conduct for computerised reservation
                                                                            systems,      and     Council       Regulation   (EEC)
Ð The negotiation of this type of bilateral agreement
                                                                            No 95/93 (6) of 18 January 1993 on common rules
     constitutes a breach of the obligations on Member
                                                                            for the allocation of slots at Community airports;
     States under Article 5 of the EC Treaty.
                                                                        Ð in the alternative, and additionally, declare, in so
Ð (Alternative submission) Breach of the obligations                        far as it considers that the 1995 agreement does
     following, in the case of Belgium, from Article 234 of                 not radically amend and therefore does not replace
     the EC Treaty.                                                         the agreements concluded previously, that
                                                                            Luxembourg is in breach of its obligations under
                                                                            Article 5 of the Treaty and under secondary law in
(1 ) OJ L 240, 24.8.1992, p. 1.                                             not rescinding, in those previous agreements, the
(2 ) OJ L 240, 24.8.1992, p. 8.                                             provisions which are incompatible with the Treaty,
(3 ) OJ L 240, 24.8.1992, p. 15.                                            in particular Article 52, and with secondary law,
(4 ) OJ L 220, 29.7.1989, p. 1.
                                                                            or by not taking all possible legislative measures to
(5 ) OJ L 278, 11.11.1993, p. 1.
(6 ) OJ L 14, 22.1.1993, p. 1.                                              that end;
                                                                   (2) order the Grand Duchy of Luxembourg to pay the
                                                                        costs.
Action brought on 18 December 1998 by the Commission
of the European Communities against the Grand Duchy of
                          Luxembourg                               The pleas in law and main arguments are similar to those
                                                                   in Case C-471/98 (7).
                        (Case C-472/98)
                         (1999/C 71/18)
                                                                   (1) OJ L 240, 24.8.1992, p. 1.
                                                                   (2) OJ L 240, 24.8.1992, p. 8.
                                                                   (3) OJ L 240, 24.8.1992, p. 15.
                                                                   (4) OJ L 220, 29.7.1989, p. 1.
                                                                   (5) OJ L 278, 11.11.1993, p. 1.
An action against the Grand Duchy of Luxembourg was                (6) OJ L 14, 22.1.1993, p. 1.
brought before the Court of Justice of the European                (7) See p. 10 of the present Official Journal.
Communities on 18 December 1998 by the Commission
of the European Communities, represented by Frank
Benyon, Legal Adviser, acting as Agent, with an address
for service in Luxembourg at the office of Carlos Gómez
de la Cruz, Wagner Centre, Kirchberg.