CELEX: C1999/071/14
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 Denmark (Case C-467/98)

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'