CELEX: C2002/323/08
Language: en
Date: 2002-12-21 00:00:00
Title: Judgment of the Court of 5 November 2002 in Case C-476/98: Commission of the European Communities v Federal Republic of Germany (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 323/8                 EN                       Official Journal of the European Communities                                        21.12.2002
                 JUDGMENT OF THE COURT                                            not rescinding those provisions of the said previously-
                                                                                  concluded agreements which are incompatible with the
                                                                                  EC Treaty, especially Article 52 thereof, and with second-
                       of 5 November 2002
                                                                                  ary law, or by failing to take all legally possible steps to
                                                                                  that end, failed, in relation to the agreements concluded
in Case C-476/98: Commission of the European Communi-                             before the EC Treaty entered into force, to comply with
            ties v Federal Republic of Germany (1)                                its obligations under Article 234 of the EC Treaty (now,
                                                                                  after amendment, Article 307 EC) and, in relation to the
                                                                                  agreements concluded after the entry into force of the
(Failure by a Member State to fulfil its obligations —                            Treaty, with its obligations under secondary law,
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                  the Court, composed of: J.-P. Puissochet, President of the Sixth
market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/                       Chamber, acting for the President, R. Schintgen (President of
92, 2409/92 and 95/93) — External competence of the                         Chamber), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann,
Community — Article 52 of the EC Treaty (now, after                         V. Skouris (Rapporteur), F. Macken, N. Colneric, S. von Bahr
amendment, Article 43 EC) — Article 5 of the EC Treaty                      and J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate
                       (now Article 10 EC))                                 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 323/08)
                   (Language of the case: German)                           1.    Declares that, by entering into international commitments with
                                                                                  the United States of America
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                                 —     concerning air fares and rates charged by carriers desig-
                                                                                        nated by the United States of America on intra-Com-
                                                                                        munity routes,
In Case C-476/98, Commission of the European Communities
(Agents: J. Sack and F. Benyon) v Federal Republic of Germany                     —     concerning computerised reservation systems offered for
(Agent: C.-D. Quassowski, assisted by G. Schohe), supported                             use or used in German territory, and
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
—     as its principal claim, a declaration that, by having
                                                                                        where air carriers designated by the Federal Republic of
      individually negotiated, initialled and concluded, in                             Germany are not owned by the latter or by German
      1994 and 1996, ‘open skies’ agreements with the United                            nationals,
      States of America in the field of air transport, the Federal
      Republic of Germany has failed to fulfil its obligations
      under the EC Treaty, and in particular Articles 5 (now                      the Federal Republic of Germany has failed to fulfil its
      Article 10 EC) and 52 (now, after amendment, Article 43                     obligations under Article 5 of the EC Treaty (now Article 10
      EC) thereof, and also under secondary law adopted                           EC) and Article 52 of the EC Treaty (now, after amendment,
      pursuant to that Treaty, and in particular Council Regu-                    Article 43 EC) and under Council Regulation (EEC) No 2409/
      lation (EEC) No 2407/92 of 23 July 1992 on licensing of                     92 of 23 July 1992 on fares and rates for air services and
      air carriers (OJ 1992 L 240, p. 1), Council Regulation                      Council Regulation (EEC) No 2299/89 of 24 July 1989 on a
      (EEC) No 2408/92 of 23 July 1992 on access for                              code of conduct for computerised reservation systems, as
      Community air carriers to intra-Community air routes                        amended by Council Regulation (EEC) No 3089/93 of
      (OJ 1992 L 240, p. 8), Council Regulation (EEC) No 2409/                    29 October 1993;
      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              2.    Dismisses the remainder of the application;
      reservation systems (OJ 1989 L 220, p. 1), as amended
      by Council Regulation (EEC) No 3089/93 of 29 October
                                                                            3.    Orders the Federal Republic of Germany to pay the costs;
      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                 4.    Orders the Kingdom of the Netherlands to bear its own costs.
      1993 L 14, p. 1); and,
—     in the alternative, in relation to part of its principal claim,
                                                                            (1 ) OJ C 71 of 13.3.1999.
      a declaration that, in so far as the 1994 and 1996
      agreements cannot be regarded as having radically
      amended and thus replaced the agreements previously
      concluded, the Federal Republic of Germany has, by