CELEX: C2002/323/07
Language: en
Date: 2002-12-21 00:00:00
Title: Judgment of the Court of 5 November 2002 in Case C-475/98: Commission of the European Communities v Republic of Austria (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))

21.12.2002               EN                      Official Journal of the European Communities                                               C 323/7
                  JUDGMENT OF THE COURT                                           secondary law, or by failing to take all legally possible
                                                                                  steps to that end, failed, in relation to the agreements
                        of 5 November 2002                                        concluded before the EC Treaty entered into force, to
                                                                                  comply with its obligations under Article 234 of the EC
                                                                                  Treaty (now, after amendment, Article 307 EC) in the
in Case C-475/98: Commission of the European Communi-                             version resulting from Article 6 of the Act concerning
                   ties v Republic of Austria ( 1)                                the conditions of accession of the Republic of Austria,
                                                                                  the Republic of Finland and the Kingdom of Sweden and
(Failure by a Member State to fulfil its obligations —                            the adjustments to the Treaties on which the European
Conclusion and application by a Member State of a bilateral                       Union is founded (OJ 1994 C 241, p. 21, and OJ 1995
‘open skies’ agreement with the United States of America —                        L 1, p. 1),
Secondary legislation governing the internal air transport
market (Regulations (EEC) Nos 2299/89, 2407/92, 2408/                       the Court, composed of: J.-P. Puissochet (President of the Sixth
92, 2409/92 and 95/93) — External competence of the                         Chamber), acting for the President, R. Schintgen (President of
Community — Article 52 of the EC Treaty (now, after                         Chamber), C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann
amendment, Article 43 EC) — Article 5 of the EC Treaty                      and V. Skouris (Rapporteur), F. Macken, N. Colneric, S. von
                        (now Article 10 EC))                                Bahr and J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate
                                                                            General; H. von Holstein, Deputy Registrar, and D. Louterman-
                           (2002/C 323/07)                                  Hubeau, Head of Division, has given a judgment on 5 Novem-
                                                                            ber 2002, in which it:
                    (Language of the case: German)
                                                                            1.    Declares that, by entering into or maintaining in force, despite
(Provisional translation; the definitive translation will be published            the renegotiation of the air transport agreement between the
                    in the European Court Reports)                                Republic of Austria and the United States of America of
                                                                                  16 March 1989, international commitments with the United
                                                                                  States of America
In Case C-475/98, Commission of the European Communities
(Agents: J. Sack and F. Benyon) v Republic of Austria (Agent:                     —     concerning air fares and rates charged by carriers desig-
C. Stix-Hackl), supported by Kingdom of the Netherlands                                 nated by the United States of America on intra-Com-
(Agents: M. A. Fierstra and J. van Bakel): Application for                              munity routes,
—     as its principal claim, a declaration that, by having                       —     concerning computerised reservation systems offered for
      individually negotiated, initialled and concluded, in 1995,                       use or used in Austrian territory, and
      an ‘open skies’ agreement with the United States of
      America in the field of air transport, the Republic of
                                                                                  —     recognising the United States of America as having the
      Austria has failed to fulfil its obligations under the EC
                                                                                        right to withdraw, suspend or limit traffic rights in cases
      Treaty, and in particular Articles 5 (now Article 10 EC)
                                                                                        where air carriers designated by the Republic of Austria
      and 52 (now, after amendment, Article 43 EC) thereof,
      and also under secondary law adopted pursuant to                                  are not owned by the latter or by Austrian nationals,
      that Treaty, and in particular Council Regulation (EEC)
      No 2407/92 of 23 July 1992 on licensing of air carriers                     the Republic of Austria has failed to fulfil its obligations under
      (OJ 1992 L 240, p. 1), Council Regulation (EEC) No 2408/                    Article 5 of the EC Treaty (now Article 10 EC) and Article 52
      92 of 23 July 1992 on access for Community air carriers                     of the EC Treaty (now, after amendment, Article 43 EC) and
      to intra-Community air routes (OJ 1992 L 240, p. 8),                        under Council Regulation (EEC) No 2409/92 of 23 July
      Council Regulation (EEC) No 2409/92 of 23 July 1992                         1992 on fares and rates for air services and Council Regulation
      on fares and rates for air services (OJ 1992 L 240, p. 15),                 (EEC) No 2299/89 of 24 July 1989 on a code of conduct for
      Council Regulation (EEC) No 2299/89 of 24 July 1989                         computerised reservation systems, as amended by Council
      on a code of conduct for computerised reservation                           Regulation (EEC) No 3089/93 of 29 October 1993;
      systems (OJ 1989 L 220, p. 1), as amended by Council
      Regulation (EEC) No 3089/93 of 29 October 1993 (OJ
                                                                            2.    Dismisses the remainder of the application;
      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 1993 L 14,              3.    Orders the Republic of Austria to pay the costs;
      p. 1); and,
                                                                            4.    Orders the Kingdom of the Netherlands to bear its own costs.
—     in the alternative, in relation to part of its principal claim,
      a declaration that, in so far as the 1995 agreement
      cannot be regarded as having radically amended and
      thus replaced the agreements previously concluded, the                (1 ) OJ C 71 of 13.3.1999.
      Republic of Austria has, by not rescinding those pro-
      visions of the said agreements which are incompatible
      with the EC Treaty, especially Article 52 thereof, and with