CELEX: C2002/323/06
Language: en
Date: 2002-12-21 00:00:00
Title: 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))

C 323/6                 EN                       Official Journal of the European Communities                                        21.12.2002
                 JUDGMENT OF THE COURT                                            agreements previously concluded, the Grand Duchy of
                                                                                  Luxembourg has, by not rescinding those provisions of
                                                                                  the said previously concluded agreements which are
                       of 5 November 2002                                         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
in Case C-472/98: Commission of the European Communi-                             its obligations under Article 5 of the Treaty and under
            ties v Grand Duchy of Luxembourg ( 1)                                 secondary law,
(Failure by a Member State to fulfil its obligations —                      the Court, composed of: J.-P. Puissochet, President of the Sixth
Conclusion and application by a Member State of a bilateral                 Chamber, acting for the President, R. Schintgen (President of
‘open skies’ agreement with the United States of America —                  Chamber), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann,
Secondary legislation governing the internal air transport                  V. Skouris (Rapporteur), F. Macken, N. Colneric, S. von Bahr
market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/                       and J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate
92, 2409/92 and 95/93) — External competence of the                         General; H. von Holstein, Deputy Registrar, and D. Louterman-
Community — Article 52 of the EC Treaty (now, after                         Hubeau, Head of Division, has given a judgment on 5 Novem-
amendment, Article 43 EC) — Article 5 of the EC Treaty                      ber 2002, in which it:
                       (now Article 10 EC))
                                                                            1.    Declares that, by entering into or maintaining in force, despite
                          (2002/C 323/06)                                         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
                    (Language of the case: French)
                                                                                  United States of America
(Provisional translation; the definitive translation will be published            —     concerning air fares and rates charged by carriers desig-
                   in the European Court Reports)                                       nated by the United States of America on intra-Com-
                                                                                        munity routes,
                                                                                  —     concerning computerised reservation systems offered for
In Case C-472/98, Commission of the European Communities                                use or used in Luxembourg territory, and
(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                        —     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
—     as its principal claim, a declaration that, by having                             Luxembourg are not owned by the latter or by Luxembourg
      individually negotiated, initialled and concluded, in 1995,                       nationals,
      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                    the Grand Duchy of Luxembourg has failed to fulfil its
      under the EC Treaty, and in particular Articles 5 (now                      obligations under Article 5 of the EC Treaty (now Article 10
      Article 10 EC) and 52 (now, after amendment, Article 43                     EC) and Article 52 of the EC Treaty (now, after amendment,
      EC) thereof, and also under secondary law adopted                           Article 43 EC) and under Council Regulation (EEC) No 2409/
      pursuant to that Treaty, and in particular Council Regu-                    92 of 23 July 1992 on fares and rates for air services and
      lation (EEC) No 2407/92 of 23 July 1992 on licensing of                     Council Regulation (EEC) No 2299/89 of 24 July 1989 on a
      air carriers (OJ 1992 L 240, p. 1), Council Regulation                      code of conduct for computerised reservation systems, as
      (EEC) No 2408/92 of 23 July 1992 on access for                              amended by Council Regulation (EEC) No 3089/93 of
      Community air carriers to intra-Community air routes                        29 October 1993;
      (OJ 1992 L 240, p. 8), Council Regulation (EEC) No 2409/
      92 of 23 July 1992 on fares and rates for air services (OJ            2.    Dismisses the remainder of the application;
      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                 3.    Orders the Grand Duchy of Luxembourg to pay the costs;
      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                     4.    Orders the Kingdom of the Netherlands to bear its own costs.
      for the allocation of slots at Community airports (OJ
      1993 L 14, p. 1); and,
                                                                            (1 ) OJ C 71 of 13.3.1999.
—     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