Commission of the European Communities v Kingdom of the Netherlands.
Date: 2007-04-24
27. It is true that, in some circumstances, excessive duration of the pre-litigation procedure provided for by Article 2 26 EC is capable of making it more difficult for the Member State in question to refute the Commission’s arguments and thus of infringing the rights of the defence. In this case, however, the Netherlands Government has not proved that the unusual duration of the procedure has had any effect on the manner in which it has organised its defence (see, in that regard, Case C‑96/89 Commission  v Netherlands  [1991] ECR I‑2461, paragraphs 15 and 16, and Commission  v Austria , cited above, paragraph 36).
28. Furthermore, it must be pointed out that the procedure for a declaration of a failure on the part of a Member State to fulfil its obligations is based on the objective finding that a Member State has failed to fulfil its obligations under Community law and that the principle of protection of legitimate expectations cannot, in a case such as the present, be relied on by a Member State in order to preclude an objective finding of a failure on its part to fulfil its obligations under the EC Treaty or secondary legislation, since to admit that justification would run counter to the aim pursued by the procedure under Article 226 EC ( Commission  v Austria , paragraph 38).
38. Apart from the considerations set out in paragraph 29 of this judgment, it should be noted that the provisions of Article 226 EC are to be applied without the Commission being required to comply with a fixed time-limit. In this case, the Commission has explained that it decided to wait for the ‘ open skies ’ judgments delivered by the Court in 2002, and the reactions of the Netherlands Government to those judgments, before bringing the present action. In so doing, the Commission did not exercise its discretion under Article 226 EC in a manner contrary to the Treaty.
39. According to consistent case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, in particular, Case C-433/03 Commission  v Germany  [2005] ECR I-6985, paragraph 32, and case-law cited therein).
53. It follows that all the international commitments challenged in this action must be assessed in relation to the provisions of Community law cited by the Commission in support of this action (see, to that effect, Commission  v Denmark , paragraphs 36 to 42; Commission  v Sweden , paragraphs 34 to 40; Commission  v Finland , paragraphs 36 to 42; Commission  v Belgium , paragraphs 47 to 53; Commission  v Luxembourg , paragraphs 42 to 48, and Commission  v Austria , paragraphs 46 to 52).
65. A commitment of that type arises from Article 11 of the 1957 Agreement, as amended by the Exchange of Notes of 29 January and 13 March 1992 and by Article 6 of the 1978 Protocol. The Kingdom of the Netherlands has maintained that commitment despite the renegotiation of the 1957 Agreement which led to the Exchange of Notes of October 1992. By proceeding in that way, the Kingdom of the Netherlands has thus infringed the exclusive external competence of the Community which results from Article 1(3) of Regulation No 2409/92 (see, to that effect, Commission  v Denmark , paragraphs 97 to 100; Commission  v Sweden , paragraphs 93 to 96; Commission  v Finland , paragraphs 98 to 101; Commission  v Belgium , paragraphs 110 to 113; Commission  v Luxembourg , paragraphs 103 to 106; Commission  v Austria , paragraphs 112 to 115, and Commission  v Germany , paragraphs 123 to 126).
73. It is not in dispute that, by the Exchange of Notes of 29 January and 13 March 1992, the Kingdom of the Netherlands and the United States of America added to the 1957 Agreement an annex concerning the principles relating to CRSs, including those applying to CRSs offered for use or used on Netherlands territory. The Kingdom of the Netherlands maintained that annex in force despite the renegotiation of the 1957 Agreement which led to the Exchange of Notes of October 1992. By acting in that way, that Member State infringed the exclusive external competence of the Community arising from Regulation No 2299/89 (see, to that effect, Commission  v Denmark , paragraphs 102 to 104; Commission  v Sweden , paragraphs 98 to 100; Commission  v Finland , paragraphs 103 to 105; Commission  v Belgium , paragraphs 115 to 117; Commission  v Luxembourg , paragraphs 108 to 110; Commission  v Austria , paragraphs 117 to 119, and Commission  v Germany , paragraphs 128 to 130).
76. It follows from the foregoing considerations that, by entering into or maintaining in force, despite the renegotiation of the 1957 Agreement, international commitments concerning air fares and rates charged by carriers designated by the United States on intra-Community routes and concerning CRSs offered for use or used on Netherlands territory, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 5 of the Treaty and under Regulations Nos 2409/92 and 2299/89 (see, to that effect, Commission  v Denmark , paragraphs 110 to 112; Commission  v Sweden , paragraphs 106 to 108; Commission  v Finland , paragraphs 111 to 113; Commission  v Belgium , paragraphs 124 to 126; Commission  v Luxembourg , paragraphs 116 to 118; Commission  v Austria , paragraphs 124 to 126, and Commission  v Germany , paragraphs 135 to 137).
Failure to fulfil obligations arising from infringement of Article 52 of the Treaty
Arguments of the parties
90. It follows that the clause on the ownership and control of airlines is contrary to Article 52 of the Treaty (see, to that effect, Commission  v Denmark , paragraphs 122 to 124 and 128 to 133; Commission  v Sweden , paragraphs 113 to 115 and 119 to 124; Commission  v Finland , paragraphs 118 to 120 and 124 to 129; Commission  v Belgium , paragraphs 131 to 133 and 137 to 142; Commission  v Luxembourg , paragraphs 122 to 124 and 128 to 133; Commission  v Austria , paragraphs 130 to 134 and 138 to 143, and Commission  v Germany , paragraphs 144 to 146 and 150 to 156).