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Commission v. United Kingdom, Commission v. Denmark, Commission v. Sweden, Commission v. Finland; Commission v. Belgium, Commission v. Luxembourg; Commission v. Austria, Commission v. Germany. Cases C-466/98-469/98, C-471/98-472/98, C-475/98-476/98, 2002 ECR I-9427

Published online by Cambridge University Press:  27 February 2017

Frank Hoffmeister
Frank Hoffmeister*
Affiliation:
European Commission
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Type
International Decisions
Information
American Journal of International Law , Volume 98 , Issue 3 , July 2004 , pp. 567 - 572
Copyright
Copyright © American Society of International Law 2004

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References

1 Treaty Establishing the European Community, Mar. 25, 1957, 298 UNTS 11, as amended by Treaty of Nice, Feb. 26, 2001, 2001 O.J. (C 80) 1, consolidated version reprinted in 2002 O.J. (C 325) 1 [hereinafter EC Treaty]. The references below are to the consolidated version of the Treaty.

2 Denmark, Sweden, Finland, Belgium, Luxembourg, Austria, and Germany concluded open skies agreements with the United States in the 1990s. The UK-U.S. agreement of 1977 was challenged only on the ground that it contained an ownership and control clause. See the discussion of Article 43 of the EC Treaty at pp. 568–69 infra.

3 Article 10 of the EC Treaty, supra note 1, reads:

Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.

They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.

4 Council Regulation (EEC) 2409/92 of 23 July 1992 on Fares and Rates for Air Services, 2002 O.J. (L 240) 15; Council Regulation (EEC) 2299/89 of 24 July 1989 on a Code of Conduct for Computerized Reservation Systems, 1989 O.J. (L 220) 1, as amended by Council Regulation (EEC) 3089/93 of 29 October 1993, 1993 O.J. (L 278) 1.

5 Under Article 300 (6) of the EC Treaty, supra note 1, the Court may issue opinions as to whether an envisaged agreement conforms with the Treaty.

6 Opinion 1/76, Competence of the Community orOneofltsInstitutionsto Participate in the Third Revised Decision of the OECD on National Treatment, 1977 ECR 741, paras. 3–4. This opinion was confirmed by Opinion 2/92, 1995 ECR 1–521, para. 32.

7 Case C–71 /98, Commission v. Belgium, 2002 ECRI–9690, para. 70 [hereinafter Judgment]. This report is based on this case only. The texts of the other open skies judgments are basically identical.

8 Id, para. 72.

9 Case 22/70, Commission v. Council, 1971 ECR 263, paras. 16–18, 22.

10 Judgment, supra note 7, paras. 95–97.

11 Id., paras. 107–08, 98.

12 In particular, Council Regulation 2407/92 (EEC) of 23 July 1992 on Licensing of Air Carriers, 1992 O.J. (L 240) 1; Council Regulation 2408/92 (EEC) of23 July 1992 on Access for Community Air Carriers to Intra-Community Air Routes, 1992 O.J. (L 240) 8.

13 In particular, Article 1(3) of Regulation 2409/92, supra note 4, which allows only Community carriers to introduce new products or fares lower than the ones existing for identical products, in that way indirectly prohibiting air carriers of nonmember countries that operate in the Community from introducing new products or fares lower than the ones existing for identical products.

14 In particular, Articles 1 and 7 of Regulation 2299/89, supra note 4.

15 In particular, Council Regulation 95/93 (EEC) of 18 January 1993 on Common Rules for the Allocation of Slots at Community Airports, 1993 O.J. (L 14) 1.

16 Judgment, supra note 7, para. 133.

17 Id., paras. 134–40.

18 Id., paras. 141–42.

19 See Opinion 1 /94, Competence of the Community to Conclude International Agreements Concerning Services and the Protection of Intellectual Property, 1994 ECR1–5267, para. 89, where the 1/76 principle was already interpreted restrictively by the Court. For more details on this earlier development, see Holdgaard, Rass, The European Community’s Implied External Competence After the Open Skies Cases, 8 Eur. Foreign Aff. Rev. 365, 371–73 (2003)Google Scholar.

20 See Opinion 1/94, supra note 19, para. 77 (holding that” [o]nly in so far as common rules have been established at internal level does the external competence of the Community become exclusive”); Opinion 2/91, 1993 ECR 1–1061, para. 9 (holding that “[t]he exclusive or non-exclusive nature of the Community’s competence .. . may also depend on the scope of the measures which have been adopted by the Community institutions”).

21 The second method was first spelled out in Opinion 1/94, supra note 19, paras. 95–96, and confirmed in Opinion 2/92, supra note 6, para. 33.

22 Under Article 249 (3) of the EC Treaty, supra note 1, directives are binding onthemember states as to the result to be achieved, but national authorities may choose the form and methods of achieving it.

23 Opinion 2/91, supra note 20, para. 21. Directives laying down minimum requirements do not create an exclusive external competence, whereas harmonization directives, largely covering the scope of an international commitment, do. Id., paras. 25–26.

24 Opinion 1/94, supra note 19, paras. 77, 97.

25 Opinion 2/00, 2001 ECR I-9713, para. 46.

26 Thym, Daniel, Case Report: Der Binnenmarkt und the Freiheit der Lüfte—Anmerkungen turn Urteil des Gerichtshofes vom 5.11.2002, Rs. C–476/98 (Kommission gegen Deutschland), 38 Europarecht 277, 285 (2003)Google Scholar.

27 Case C–307/97, Compagnie de Saint-Gobain, Zweigniederlassung Deutschland v. Finanzamt Aachen-Innenstadt, 1999 ECR I-6161, para. 59.

28 Wassenbergh, Henri, Case Report: The Decision of the ECJ of 5 November 2002 in the “Open Skies” Agreements Case, 28 Air & Space L. 19, 24 (2003)Google Scholar, alleges that the Court went too far by applying Article 43 of the EC Treaty outside EU territory. That critique is off the mark. What is new—and acceptable—is the Court’s insistence that a member state is bound by Article 43 when negotiating a clause in an international agreement.

29 Slot, Pietjan & Jacqueline Duteilh, de la Rochère, Case Report: Court of Justice, Open Skies Judgments of the Full Court of 5 November 2002, 40 C.M.L.R. 697, 712 (2003)Google Scholar. Sorensen, Frederik, Wilko, van Weert, & Angela, Cheng-Jui Lu, ECJ Ruling on Open Skies v. Future International Air Transport, 28 Air & Space L. 3, 15 (2003)Google Scholar, even argue that Article 43 of the EC Treaty creates an exclusive competence for the Community to negotiate ownership and control clauses.

30 Communication from the Commission on the Consequences of the Court Judgments of 5 November 2002 for European Air Transport Policy, COM (02) 649 final, paras. 67–70.

31 Council Directive (EEC) of 25 February 1992 on the General Arrangements for Products Subject to Excise Duty and the Holding, Movements and Monitoring of Such Products, 1992 O.J. (L 76) 1; Council Directive 96/67/EC of 15 October 1996 on Access to the Grouridhandling Market at Community Airports, 1996 O.J. (L 272) 36.

32 Directive 2002/30 (EC) of the European Parliament and of the Council of 26 March 2002 on the Establishment of Rules and Procedures with Regard to the Introduction of Noise-related Operating Restrictions at Community Airports, 2002 O J. (L 85) 40; Council Regulation (EC) 1592/2002 of 15 July 2002 on Common Rules in the Field of Civil Aviation and Establishing a European Aviation Safety Agency, 2002 O.J. (L 240) 1; Regulation (EC) 2320/2002 of the European Parliament and of the Council of 16 December 2002 Establishing Common Rules in the Field of Civil Aviation Security, 2002 O.J. (L 355) 1.

33 Communication from the Commission on Relations Between the Community and Third Countries in the Field of Air Transport, COM (03) 94 final, para. 76 & Annex 1.

34 Proposal for a Council and European Parliament Regulation on the Negotiation and Implementation of Air Service Agreements Between Member States and Third Countries, id., para. 78 & Annex 2.

35 See Presidency Conclusions of the Brussels European Council, para. 29 (Mar. 20–21, 2003) (urging the Council to accelerate its work so as to give a mandate to the Commission to negotiate an open skies agreement with the United States), available at <http://europa.eu.int/comm/councils/bx20030321/index_en.htm>.

36 See Wassenbergh, Henri, 5June 2003, A Historic Decision by the EU Council of Transport Ministers, 28 Air & Space L. 214 (2003)Google Scholar.

37 There was some debate whether the future open skies agreement with the United States should be a mixed or pure Community agreement. Academic authors generally argued that a comprehensive open skies agreement must be concluded by the Community and its member states. See Lavranos, Nikolaos, Case Report: European Court of Justice, 5 November 2002, 30 Legal Issues Econ. Integration 81, 90 (2003)Google Scholar (containing further references).

38 Regulation (EC) 847/2004 of the European Parliament and of the Council of 29 April 2004 on the Negotiation and Implementation of Air Service Agreements Between Member States and Third Countries, 2004 O.J. (L 157) 7, corrected in 2004 O.J. (L 195) 3.