CELEX: C1999/071/13
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 United Kingdom of Great Britain and Northern Ireland (Case C-466/98)

13.3.1999              EN                Official Journal of the European Communities                                     C 71/7
(b) Does Article 73b of the EC Treaty apply retroactively          Justice of the European Communities on 18 December
     to mortgages which were registered in German marks             1998 by the Commission of the European Communities,
     prior to the accession of Austria to the European              represented by Frank Benyon, Legal Adviser, acting as
     Community, and thus incurably void at the time of              Agent, with an address for service in Luxembourg at the
     registration, in such a way as to remedy them ex post          office of Carlos Gómez de la Cruz, member of the Legal
     facto?'                                                        Service of the Commission, Centre Wagner.
     Alternatively,
                                                                    The Applicant claims that the Court should:
     Have the Community rules concerning the free
     movement of capital, in particular Article 73b of the
     EC Treaty, had the effect, by virtue of the accession
     application made by Austria on 17 July 1989 and the            1) declare that by concluding and applying an Air
     Opinion of 31 July 1991, of rendering the registration             Services Agreement signed on 23 July 1977 with the
     of a foreign-currency mortgage in Austria on                       United States of America which provides for the
     16 December 1991 permissible?'                                     revocation, suspension or limitation of traffic rights in
                                                                        cases where air carriers designated by the United
                                                                        Kingdom are not owned by the United Kingdom or
                                                                        nationals of the United Kingdom, the United Kingdom
                                                                        is in breach of Article 52 of the Treaty;
Reference for a preliminary ruling by the Oberlandes-
gericht Köln by order of 2 December 1998 in the case of
Verein gegen Unwesen in Handel und Gewerbe Köln e.V.                2) order the United Kingdom to pay the costs.
                       v Adolf Darbo AG
                        (Case C-465/98)
                         (1999/C 71/12)                             Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the
European Communities by order of 2 December 1998                    A Member State must allow nationals of any other
from the Oberlandesgericht Köln (Higher Regional Court,             Member State to set up businesses and pursue the same on
Cologne), which was received at the Court Registry on               national conditions: anything less would render the right
18 December 1998, for a preliminary ruling in the case of           of establishment pointless, an empty shell. Article 52 is
Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v              not concerned with how and whether the right to supply
Adolf Darbo AG on the following question:                           services to another Member State may be exercised or
                                                                    restricted (which is governed at Community level by a
                                                                    separate Treaty article, Article 59) but, simply with the
Is it contrary to Article 2(1)(a)(i) of Directive 79/112/EEC
                                                                    right to be treated as a national of the Member State for
(OJ L 33, 8.2.1979, p. 1) (the directive on labelling') for
                                                                    the purposes of its business where an undertaking is
jam manufactured in a Member State (Austria) and sold
                                                                    established in that same Member State.
there and in another Member State (the Federal Republic
of Germany) under the description naturrein' (naturally
pure') to contain the gelling agent pectin and less than
0.01 mg/kg lead (atomic absorption spectrometry analysis
Ð AAS), 0.008 mg/kg cadmium (AAS), and pesticides                   Article 52 by its very nature does not refer to treatment
(0.016 mg/kg procymidone and 0.005 mg/kg vinclozolin)?              under Community law (for example the rights granted
                                                                    under Regulation (EEC) No 2408/92 (1)) as the United
                                                                    Kingdom alleges, but to those granted nationally, in the
                                                                    present case, the rights which the United Kingdom
                                                                    correctly notes derive from bilateral Member State
                                                                    agreements with third countries'. By concluding a
                                                                    so-called open sky' agreement, the United Kingdom
Action brought on 18 December 1998 by the Commission                authorities have granted a right to benefit from the traffic
of the European Communities against the United                      rights granted under the agreement to designated airlines
       Kingdom of Great Britain and Northern Ireland                if under United Kingdom control since there is no
                        (Case C-466/98)                             possibility for the United States to refuse the same, but
                                                                    they have granted only a possibility, wholly unguaranteed,
                         (1999/C 71/13)                             to benefit therefrom where the designated carrier is
                                                                    controlled by nationals of other Member States. This is a
                                                                    failure by the United Kingdom to grant equal treatment to
An action against the United Kingdom of Great Britain               nationals of other Member States irrespective of whether
and Northern Ireland was brought before the Court of                and how the United States of America excercises its rights.
 ---pagebreak--- C 71/8                 EN               Official Journal of the European Communities                                       13.3.1999
Finally, the United Kingdom authorities' allegation that                     agreement with the USA in the air-transport sector,
the ownership and control provision of the agreement is                      the Kingdom of Denmark acted in breach of the
preserved under Article 234 since it reproduces a clause                    EC Treaty, in particular Articles 5 and 52 thereof,
couched in similar terms which was contained in the                          and also contrary to the secondary law adopted
United Kingdom/United States air service agreement' of                       thereunder, in particular Council Regulation (EEC)
1946 cannot be accepted. Firstly, Article 234 does not                       No 2407/92 (1) of 23 July 1992 on licensing of air
apply to agreements concluded after the accession of the                     carriers, Council Regulation (EEC) No 2408/92 (1)
United Kingdom in 1973; this agreement was concluded                         of 23 July 1992 on access for Community air
thereafter, in 1977. Secondly, even were Article 234 able                    carriers to intra-Community routes, Council
to be invoked, quod non, Article 234 does not simply                         Regulation (EEC) No 2409/92 (1) of 23 July 1992
preserve previous agreements but rather, in its second                       on fares and rates for air services, Council
paragraph, obliges the Member State to take all                              Regulation (EEC) No 2299/89 (2) of 24 July 1989,
appropriate steps to eliminate incompatibilities with the                    as amended by Council Regulation (EEC)
Treaty and with the rules enacted pursuant thereto. The                      No 3089/93 (3) of 29 October 1993, on a code of
United Kingdom does not indicate the taking of any such                      conduct for computerised reservation systems, and
appropriate steps or endeavours whatsoever to amend the                      Council Regulation (EEC) No 95/93 (4) of
offending provisions and this notwithstanding the clear                      18 January 1993 on common rules for the
indication of the incompatibilities with the Treaty pointed                  allocation of slots at Community airports;
out by the Commission on several occasions.
(1) Council Regulation (EEC) No 2408/92 of 23 July 1992 on
    access for Community air carriers to intra-Community air
    routes (OJ L 240, 24.8.1992, p. 8).                                  Ð in the alternative, that, in so far as provisions
                                                                             retained from the 1944/1954 agreement are
                                                                             concerned, in the event that the 1995 agreement
                                                                             cannot be regarded as having radically amended
                                                                             and      thus    replaced      agreements     previously
                                                                             concluded, the Kingdom of Denmark infringed
                                                                             Article 234 of the EC Treaty by not rescinding
                                                                             provisions in the agreement which are
                                                                             incompatible with the EC Treaty, in particular
Action brought on 18 December 1998 by the Commission                         Article 52, and with the secondary law adopted
of the European Communities against the Kingdom of                           thereunder, and by failing to adopt the necessary
                            Denmark                                          legal measures to that effect;
                        (Case C-467/98)
                         (1999/C 71/14)
                                                                   2. Order the Kingdom of Denmark to pay the costs of
                                                                         the present proceedings.
An action against the Kingdom of Denmark was brought
before the Court of Justice of the European Communities
on 18 December 1998 by the Commission of the
European Communities, represented by Frank Benyon and
Hans Peter Hartvig, Legal Advisers, acting as Agents, with
an address for service in Luxembourg at the office of
Carlos Gómez de la Cruz, of the Commission's Legal                 The pleas in law and main arguments in support are
Service, Wagner Centre, Kirchberg.                                 similar to those in Case C-471/98 (5).
                                                                   (1 ) OJ L 240, 24.8.1992, pp. 1, 8 and 15 respectively.
The applicant claims that the Court should:                        (2 ) OJ L 220, 29.7.1989, p. 1.
                                                                   (3 ) OJ L 278, 11.11.1993, p. 1.
                                                                   (4 ) OJ L 14, 22.1.1993, p. 1.
                                                                   (5 ) See p. 10 of the present Official Journal.
1. Declare:
     Ð primarily, that, by having in 1995 individually
         negotiated, signed and concluded an Open Skies'