OPINION OF ADVOCATE GENERAL

BOT

delivered on 30 April 2013 (1)

Case C‑628/11

Criminal proceedings
against

International Jet Management GmbH

(Request for a preliminary ruling from the Oberlandesgericht Braunschweig (Germany))

(Prohibition of any discrimination on the ground of nationality – Commercial flights from a third country to a Member State – Legislation of a Member State providing that air carriers not having an operating licence issued by that State must obtain an authorisation for each flight from a third country)





1.        By this reference for a preliminary ruling, the Court is invited to declare whether Article 18 TFEU must be interpreted as precluding a Member State from requiring Community air carriers in possession of an operating licence issued in another Member State under Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast), (2) to hold an authorisation to enter its airspace in order to operate charter flights from a third country to its territory.

2.        The chief difficulty in the case now before the Court is in determining whether Article 18 TFEU is applicable to a situation such as that in the main proceedings, regard being had to the subject-matter concerned, that is to say the supply by a Community air carrier of air services between a third country and a Member State.

3.        In this Opinion I shall explain, first of all, the reasons why I consider that provision to be applicable to the situation at issue in the main proceedings.

4.        I shall then state why in my view that provision must be interpreted as precluding a Member State from requiring Community air carriers in possession of an operating licence issued in another Member State to hold an authorisation to enter its airspace in order to operate charter flights from a third country to its territory.

I –  Legal framework

A –    European Union law

1.      Regulation (EC) No 847/2004

5.        Article 3 of Regulation (EC) No 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 (3) provides that ‘[a] Member State shall not enter into any new arrangement with a third country, which reduces the number of Community air carriers which may, in accordance with existing arrangements, be designated to provide services between its territory and that country, neither in respect of the entire air transport market between the two parties nor on the basis of specific city pairs’.

6.        Article 5 of the regulation provides as follows:

‘Where a Member State concludes an agreement, or amendments to an agreement or its Annexes, that provide for limitations on the use of traffic rights or the number of Community air carriers eligible to be designated to take advantage of traffic rights, that Member State shall ensure a distribution of traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure.’

2.      Regulation No 1008/2008

7.        Recital 10 in the preamble to Regulation No 1008/2008 provides:

‘In order to complete the internal aviation market, still existing restrictions applied between Member States, such as restrictions on the code sharing on routes to third countries or on the price setting on routes to third countries with an intermediate stop in another Member State (sixth freedom flights) should be lifted.’

8.        Article 1(1) of that regulation reads as follows:

‘This Regulation regulates the licensing of Community air carriers, the right of Community air carriers to operate intra-Community air services and the pricing of intra-Community air services.’

9.        Article 2 of that regulation provides:

‘For the purposes of this Regulation:

1.      “operating licence” means an authorisation granted by the competent licensing authority to an undertaking, permitting it to provide air services as stated in the operating licence;

4.      “air service” means a flight or a series of flights carrying passengers, cargo and/or mail for remuneration and/or hire;

8.      “air operator certificate (AOC)” means a certificate delivered to an undertaking confirming that the operator has the professional ability and organisation to ensure the safety of operations specified in the certificate, as provided in the relevant provisions of Community or national law, as applicable;

10.      “air carrier” means an undertaking with a valid operating licence or equivalent;

11.      “Community air carrier” means an air carrier with a valid operating licence granted by a competent licensing authority in accordance with Chapter II;

13.      “intra-Community air service” means an air service operated within the Community;

14.      “traffic right” means the right to operate an air service between two Community airports.

…’

10.      Article 3(1) of Regulation No 1008/2008 provides:

‘No undertaking established in the Community shall be permitted to carry by air passengers, mail and/or cargo for remuneration and/or hire unless it has been granted the appropriate operating licence.

An undertaking meeting the requirements of this Chapter shall be entitled to receive an operating licence.’

11.      Article 4 of that regulation provides:

‘An undertaking shall be granted an operating licence by the competent licensing authority of a Member State provided that:

(a)      its principal place of business is located in that Member State;

(b)      it holds a valid AOC issued by a national authority of the same Member State whose competent licensing authority is responsible for granting, refusing, revoking or suspending the operating licence of the Community air carrier;

(d)      its main occupation is to operate air services in isolation or combined with any other commercial operation of aircraft or the repair and maintenance of aircraft;

…’

12.      Article 15 of Regulation No 1008/2008, entitled ‘Provision of intra-Community air services’, which forms part of Chapter III, itself entitled ‘Access to routes’, provides as follows:

‘1.      Community air carriers shall be entitled to operate intra-Community air services.

2.       Member States shall not subject the operation of intra-Community air services by a Community air carrier to any permit or authorisation. Member States shall not require Community air carriers to provide any documents or information which they have already supplied to the competent licensing authority, provided that the relevant information may be obtained from the competent licensing authority in due time.

...

5.      Notwithstanding the provisions of bilateral agreements between Member States, and subject to the Community competition rules applicable to undertakings, Community air carriers shall be permitted by the Member State(s) concerned to combine air services and to enter into code share arrangements with any air carrier on air services to, from or via any airport in their territory from or to any point(s) in third countries.

A Member State may, in the framework of the bilateral air service agreement with the third country concerned, impose restrictions on code share arrangements between Community air carriers and air carriers of a third country, in particular if the third country concerned does not allow similar commercial opportunities to Community air carriers operating from the Member State concerned. In doing so, Member States shall ensure that restrictions imposed under such agreements do not restrict competition and are non-discriminatory between Community air carriers and that they are not more restrictive than necessary.’

B –    German law

13.      Paragraph 2(1) of the Law on aviation (Luftverkehrsgesetz), in the version published on 10 May 2007 (BGB1. 2007 I, p. 698) (‘the LuftVG’), provides that German aircraft are authorised to fly only when they possess an authorisation to that effect (operating licence) and are entered, where provided for by legislation, in the register of German aircraft (aircraft register). Moreover, that provision states that an aircraft is authorised to fly only if that type of aircraft is approved, if the certificate of airworthiness provided for in the legislation on the technical monitoring of aircraft is produced in respect of it, if the owner of the aircraft has taken out third-party liability insurance and the aircraft is equipped in such a way as not to exceed the technically acceptable threshold with regard to noise nuisance.

14.      Under Paragraph 2(7) of that law, aircraft not registered and approved within the territory of application of the law may enter the airspace, or be brought there in any other way, for the purpose of flying only after having obtained due authorisation. The latter requirement is not necessary when a treaty between the country of origin and the Federal Republic of Germany, or an agreement binding on the two States, provides otherwise.

15.      Paragraph 2(8) states that the authorisation referred to in subparagraphs (6) and (7) may be granted in general terms or for a specific case; it may be accompanied by conditions and by a time‑limit.

16.      Under Paragraph 58 of the LuftVG, any person who intentionally or negligently enters the airspace to which the present law applies by means of an aircraft, or brings into it an aircraft in any other manner, without obtaining the authorisation provided for in Paragraph 2(7), shall be guilty of an offence. That offence is punishable by a fine of up to EUR 10 000.

17.      Paragraph 94 of the Regulation on aircraft operating licences (Luftverkehrs-Zulassungs-Ordnung), in the version published on 10 July 2008 (BGB1. 2008 I, p. 1229) (‘the LuftVZO’), provides that the authorisation to enter the airspace of the Federal Republic of Germany, referred to in Paragraph 2(7) of the LuftVG, is to be issued by the Bundesministerium für Verkehr, Bau und Stadtentwicklung (Federal Ministry of Transport, Construction and Town Planning), or by another authority designated by it.

18.      Paragraph 95(1) of the LuftVZO states that an application for an authorisation must contain the name and address of the owner of the aircraft, the aircraft type and its registration status and registration number, the predicted date and time of arrival and the likely time of its return flight or of its flight to another destination, the departure and arrival airports and, where appropriate, the transit airports within federal territory; it must also state the number of passengers and the nature and volume of cargo, the purpose of the flight, in particular, in the case of carriage of a specific group, and the place where that group was initially assembled and, in the case of a charter flight, the name, address and branch of the operator. The authority issuing the authorisation may require other information. The Bundesministerium für Verkehr, Bau und Stadtentwicklung, or any other authority designated by it, is to provide details of the procedure for the application for authorisation in the form of general administrative provisions.

19.      Under Paragraph 95(2) of the LuftVZO, with the exception of the case referred to in subparagraph (3) thereof, application for an authorisation in respect of flights outside the regular schedules requiring landing facilities for commercial purposes (charter flights) must be made to the issuing authority not later than two whole working days before take-off of the intended flight and, in the case of a series of more than four flights, not later than four weeks before the take-off of the intended flights.

II –  Facts in the main proceedings

20.      International Jet Management GmbH (4) is an airline company with its seat in Schwechat, Vienna (Austria). It operates charter flights from third countries, in this case Russia and Turkey, to the Member States of the European Union.

21.      This company is the holder of an operating licence issued by the Austrian Ministry of Transport under Regulation No 1008/2008. It also holds an air operating certificate in accordance with Article 6 of that regulation issued to it by Austro Control GmbH, a company wholly owned by the Republic of Austria which provides public services.

22.      By judgment of 24 May 2011, the Amtsgericht Braunschweig (Local Court, Braunschweig) ordered International Jet Management to pay a fine of EUR 500 in respect of contraventions committed through negligence, four fines of EUR 1 890 for deliberate contraventions and six fines of EUR 600, again for deliberate contraventions. That court found that, from 9 December 2008 to 15 March 2009, International Jet Management had operated flights from Moscow (Russia) and Ankara (Turkey) to destinations in Germany, even though it was not in possession of an authorisation to enter German airspace provided for in Paragraph 2(7) of the LuftVG, read in conjunction with Paragraph 94 et seq. of the LuftVZO.

23.      In three cases, the Luftfahrtbundesamt (Federal Office for Aviation) had refused it authorisation to enter German airspace on the ground that it had not produced a non-availability declaration. That declaration attests to the fact that the Community air carrier established in the territory of another Member State has previously inquired with German airline companies in order to ensure that none of them is available to operate the flight in question on comparable terms. In the other cases, the Luftfahrtbundesamt had not, at the time of the flights in question, given a decision on the application for authorisation.

24.      International Jet Management appealed against the judgment of 24 May 2011 to the first criminal chamber of the Oberlandesgericht Braunschweig (Higher Regional Court, Braunschweig), seeking annulment of that judgment and its acquittal. In support of its appeal, that company submits, first, that the conditions under which the fine was imposed are incompatible with European Union law and that Regulation No 1008/2008 already gives it the right to enter European Union airspace without authorisation. It considers, secondly, that the principle of non-discrimination laid down in Article 18 TFEU prohibits the imposition of such fines. It maintains, finally, that the German national rule is incompatible with Article 56 TFEU which champions freedom to provide services within the European Union.

25.      Since the national court entertained doubts as to the interpretation to be given to European Union law, it decided to stay the proceedings and refer several questions to the Court for a preliminary ruling.

III –  The questions referred

26.      The Oberlandesgericht Braunschweig refers the following questions to the Court of Justice:

‘(1)      Does it fall within the scope of the prohibition of discrimination laid down in Article 18 TFEU (formerly Article 12 EC) if a Member State ([namely the] Federal Republic of Germany) requires an airline to obtain an authorisation to make inward flights in respect of charter flights (commercial flights in non-scheduled traffic) from non-member countries into the territory of that Member State, where that airline holds a valid operating licence within the meaning of Articles 3 and 8 of Regulation … No 1008/2008 …, issued in another Member State ([namely the] Republic of Austria)?

(2)      If the reply to Question 1 is in the affirmative, is the requirement for an authorisation in itself contrary to Article 18 TFEU … if an authorisation to make an inward flight, the obtaining of which can be enforced by means of an administrative fine, is required for flight services from non-member countries by airlines which have received an operating licence in the other Member States, but not by airlines with an operating licence obtained in [Germany]?

(3)      If the case falls within the scope of Article 18 TFEU … (Question 1) but the requirement for authorisation is not itself found to be discriminatory (Question 2), may the grant of an authorisation to make an inward flight in respect of the appellant’s flight services from non-member countries to the Federal Republic of Germany be made conditional, on pain of an administrative fine, and without breaching the prohibition of discrimination, on whether the airline of the Member State proves to the authority which grants the authorisation that airlines with an operating licence in [Germany] are not in a position to carry out the flights (non-availability declaration)?’

IV –  Analysis

27.      By its first and second questions, the national court is essentially asking whether Article 18 TFEU must be interpreted as precluding a Member State from requiring Community air carriers in possession of an operating licence issued in another Member State to hold an authorisation to enter its airspace in order to operate charter flights from a third country to its territory.

28.      The chief difficulty in this case is knowing whether the situation at issue in the main proceedings, that is to say the supply by a Community air carrier of air services from a third country to a Member State, comes within the scope of the FEU Treaty, thus rendering the principle of non-discrimination applicable to it.

A –    Applicability of Article 18 TFEU to the situation in the main proceedings

29.      The air transport sector occupies a specific place in the FEU Treaty. Under Article 4(2)(g) TFEU, the Member States and the European Union have shared competence in the area of transport. Under Article 58(1) TFEU, freedom to provide services in the field of transport is governed by the provisions of the title relating to transport, namely Title VI. The freedom to provide services in the transport sector is therefore governed by a legal regime distinct from the ordinary law.

30.      Furthermore, that title treats sea and air transport in a special way and distinguishes them from other modes of transport. Under Article 100(1) and (2) TFEU, both are excluded from that title, unless the European Union legislature should decide otherwise. (5) For air transport, therefore, liberalising measures may only be adopted under Article 100(2) TFEU.

31.      In that regard, by adopting Regulation No 1008/2008, the European Union legislature exercised the competence conferred on it by Article 100(2) TFEU and liberalised air services for intra-Community routes. Article 1(1) of that regulation states that it specifically governs the right of Community air carriers to operate intra-Community air services. Conversely, the European Union legislature has not hitherto liberalised the sector covering air routes between third countries and the Member States.

32.      Therefore, even if those routes are not yet liberalised, must they be subject to the general rules of the FEU Treaty and, more specifically, to the principle of non-discrimination?

33.      According to the German Government, in so far as under Articles 1(1) and 15(1) and (2) of Regulation No 1008/2008, the latter instrument applies only to intra-Community air services, the Union legislature availed itself of the competence conferred on it by Article 100(2) TFEU only in this area. Accordingly, Title VI of the FEU Treaty governs only intra-Community air services and does not apply to air services operated from a third country to a Member State, thus excluding the latter services from the scope of the Treaties. Article 18 TFEU is therefore, in the German Government’s view, not applicable to the situation in the main proceedings.

34.      In other words, the German Government considers that, because no secondary legislation has been adopted under Article 100(2) TFEU to govern a situation such as that in the main proceedings, that situation must be excluded from the scope of the FEU Treaty.

35.      I cannot share that assessment of the matter. In my view, the field within which this situation is subsumed, namely the provision by a Community air carrier of air services between a Member State and a third country, comes within the scope of European Union law and remains subject to the requirement of observance of the principle of non-discrimination.

36.      The German Government is mistaken, in my view, as to the meaning and scope to be attributed to Article 100(2) TFEU, read in conjunction with Article 58(1) TFEU.

37.      The reference to Article 100(2) TFEU in Article 58(1) TFEU concerns only the freedom to provide services. Thus, it states that transport services may be liberalised not under the common regime but under Title VI of the FEU Treaty, relating to transport.

38.      Article 100(2) TFEU for its part has no purpose other than to define the scope of Title VI by distinguishing the different modes of transport and specifying that the provisions under that Title do not apply automatically to air and sea transport. (6) Contrary to the German Government’s assertion, it is not intended to remove air transport of whatever nature from the scope of the FEU Treaty unless the European Union legislature has adopted legislation on the basis of Article 100(2) TFEU. (7)

39.      Accordingly, even though a transport service does not come within the scope of a provision of secondary law adopted under Article 100(2) TFEU and continues to be subject to national legislation, none the less, when adopting legislation on that service, the Member States must do so in compliance with Article 61 TFEU and other general provisions of the FEU Treaty. (8)

40.      If the authors of the Treaties had wished to exclude the application to the air transport sector of the general rules of the FEU Treaty, other than those relating to the freedom to provide services, they would have done so expressly by a provision analogous to Article 58(1) TFEU. (9)

41.      Accordingly, Article 18 TFEU applies to a situation which is not yet governed by secondary law adopted on the basis of Article 100(2) TFEU.

42.      It remains to determine whether, in view of the fact that the situation in the main proceedings concerns the provision by a Community air carrier of air services from a third country to a Member State, that situation comes within the scope of application of the FEU Treaty within the meaning of that provision.

43.      I consider that this is indeed the case.

44.      At the outset and because that question has been raised in particular at the hearing I consider that the fact that the situation at issue in the main proceedings concerns a non-scheduled flight has no bearing on the solution that I will be proposing. In fact, the distinction between scheduled and non-scheduled air services is weakening. (10) Regulation No 1008/2008 itself mentions scheduled air services only on a few occasions when flight schedules affect the application of the conditions under which the issue of an operating licence may be granted (11) or are important in terms of ensuring that public service obligations are met. (12) Apart from these specific exceptions, the regulation does not distinguish between scheduled and non-scheduled flights in terms of the application of the provisions it enacts, which seems to me to be sensible in the light of the aim of the regulation which is to ensure the financial health of air carriers and thus safety.

45.      Regulation No 1008/2008 is not unrelated to the situation at issue in the main proceedings. It is true that under Article 1(1) of the regulation it governs the right of Community air carriers to operate intra-Community air services. However, it should not be overlooked that that regulation also governs the licences of Community air carriers. Under Chapter II dealing with the operating licence, the European Union legislature harmonised the conditions for granting the operating licence and established rules concerning the validity, suspension and withdrawal of that licence. In that regard, the second subparagraph of Article 3(1) of that regulation provides that any undertaking meeting the requirements laid down in that Chapter may obtain an operating licence. Article 3(2) provides that the competent licensing authority is not to grant operating licences or maintain them in force where any of the requirements of this Chapter are not complied with.

46.      Yet that harmonisation, which concerns the status of any Community air carrier, is to be understood as applying to any flight effectuated, whether an intra-Community flight or a flight between a Member State and a third country. Article 4(d) of that regulation states that the competent licensing authority of a Member State is to issue an operating licence to an undertaking if its main occupation is to operate air services in isolation or combined with any other commercial operation of aircraft or the repair and maintenance of aircraft.

47.      The concept of ‘air service’ is defined in Article 2(4) of Regulation No 1008/2008 as ‘a flight or a series of flights carrying passengers, cargo and/or mail for remuneration and/or hire’. That concept therefore encompasses all flights whether they be intra-Community or between a third country and a Member State. That is borne out by the fact that the Union legislature was at pains to distinguish such a service from an intra-Community air service, defined in Article 2(13) of that regulation as ‘an air service operated within the Community’.

48.      Therefore, for the provision of air services of whatever nature, a Community air carrier must hold an operating licence issued in accordance with the provisions of Chapter II of Regulation No 1008/2008. That licence guarantees that the air carrier obtained it in compliance with the common rules, in particular those concerning safety, and must therefore be recognised as valid by the other Member States. In actual fact, that regulation, without stating so expressly, establishes a principle under which there must be mutual recognition of operating licences.

49.      The operating licence must also be seen as a condition precedent to the provision by a Community air carrier of aviation services in respect of, inter alia, routes from a third country to a Member State.

50.      A national measure such as that in the main proceedings, which does not recognise the operating licence issued by another Member State, may affect the very status of the Community air carrier.

51.      Next, it is undeniably the case that other secondary legislation, though not specifically referring to the provision by an air carrier holding an operating licence issued by a Member State of air services between a third country and another Member State, may apply to a situation such as that is issue in the main proceedings. Thus, for example, Article 3(1)(b) of Regulation No 261/2004 applies to ‘passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the [EC] Treaty applies ..., if the operating air carrier of the flight concerned is a Community carrier’.

52.      Similarly, under Article 2(1) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators, (13) ‘[the] Regulation shall apply to all air carriers and to all aircraft operators flying within, into, out of, or over the territory of a Member State to which the [EC] Treaty applies’.

53.      Moreover, it must also be noted that Regulation No 1107/2006 provides in Article 1(2) and (3) that ‘[t]he provisions of [the] Regulation shall apply to disabled persons and persons with reduced mobility, using or intending to use commercial passenger air services on departure from, on transit through, or on arrival at an airport, when the airport is situated in the territory of a Member State to which the [EC] Treaty applies. Articles 3, 4 and 10 shall also apply to passengers departing from an airport situated in a third country to an airport situated in the territory of a Member State to which the [EC] Treaty applies, if the operating carrier is a Community air carrier.’

54.      Finally, and without being exhaustive, European Union legislation in this field being abundant, it must be observed that, following the ‘Open Skies’ judgments, (14) the European Union legislature adopted Regulation No 847/2004 to establish a procedure for cooperation between the Member States and the European Commission when the Member States decide to enter into agreements concerning aviation services between the Member States and third countries (15) and where it becomes apparent that the subject-matter of the agreement in question falls partly within the competence of the European Union and partly within that of the Member States.

55.      In particular, under Article 5 of Regulation No 847/2004, entitled ‘Distribution of traffic rights’, (16) ‘[w]here a Member State concludes an agreement, or amendments to an agreement or its Annexes, that provide for limitations on the use of traffic rights or the number of Community air carriers eligible to be designated to take advantage of traffic rights, that Member State shall ensure a distribution of traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure.’ (17)

56.      Accordingly I am of the opinion that, inasmuch as the European Union legislature adopted several rules with regard to the situation at issue in the main proceedings, the provision by a Community air carrier of air services from a third country to a Member State comes within the scope of the FEU Treaty. Under Article 2 TEU, the European Union is founded on values common to the Member States in a society in which, inter alia, non-discrimination prevails. So, a rule as fundamental as that derived from the principle of non-discrimination must apply in the case before the Court which intersects at many points with European Union law.

57.      However, the French Government considers that application of Article 18 TFEU to a situation such as that in issue in the main proceedings would deprive Article 58(1) TFEU of any useful effect in so far as, if a Member State were required to treat equally Community air carriers which obtained operating licences in its territory and Community air carriers which obtained them in the territory of another Member State, that would result in extending the freedom to provide services laid down in Article 56 TFEU to the transport services at issue in the present case. In support of its argument the French Government cites the judgement in Corsica Ferries (France), (18) in which the Court held that the EEC Treaty, in particular Articles 59, 61, 62 and 84 thereof, did not, before the entry into force of Council Regulation (EEC) No 4055/86, (19) prevent a Member State from levying, in connection with the use by a ship of harbour installations situated in its island territory, charges on the embarkation and disembarkation of passengers arriving from or going to a port situated in another Member State, whilst in the case of travel between two ports situated within national territory those charges were levied only on embarkation at the island port.

58.      I do not share the French Government’s view.

59.      The judgment in Corsica Ferries (France) does not in my view call in question the applicability of Article 18 TFEU to the situation at issue in the main proceedings. Indeed, first of all, as correctly pointed out by Advocate General Mengozzi in his Opinion in the case which gave rise to Neukirchinger, the Court in Corsica Ferrries (France), did not examine the legislation at issue from the perspective of Article 7 of the EEC Treaty (now Article 18 TFEU). (20)

60.      Next, freedom to provide services is not solely founded on the prohibition of discriminatory measures based on the nationality of the service provider. It is founded also on the elimination of any restrictions imposed by national legislation which, although applicable without distinction, impede freedom to provide services where such legislation is such as to prohibit, impede or render less attractive the provision of services by a provider established in another Member State. (21)

61.      That means that, if a sector is not liberalised, the Member States are entitled to impose restrictions. That was, moreover, the conclusion reached by the Court in Corsica Ferries (France). (22) On the other hand, even where a sector is not liberalised, the Member States must none the less, in my view, observe the principle of non‑discrimination.

62.      In that regard, Article 15(5) of Regulation No 1008/2008, it seems to me, illustrates these points very well. That provision stipulates that, notwithstanding the provisions of bilateral agreements entered into between Member States, Community air carriers are permitted by the Member State(s) concerned to combine air services and to enter into code share arrangements with any air carrier (23) on air services to any airport in their territory and from any point in third countries. Under the second subparagraph of that provision a Member State may impose restrictions on code share arrangements between Community air carriers and air carriers of a third country. However, that Member State must ensure that restrictions imposed under such agreements do not restrict competition and are non-discriminatory between Community air carriers and that they are not more restrictive than necessary.

63.      That provision shows in my view that, despite the fact that air services in respect of routes between a third country and a Member State have not been liberalised, the Member States remain subject to the obligation to observe, inter alia, the principle of non-discrimination.

64.      Having regard to all of the foregoing considerations, I am of the opinion that Article 18 TFEU is applicable to a situation such as that in the main proceedings.

65.      It necessary now to determine whether that provision precludes a Member State from requiring Community air carriers with an operating licence issued in another Member State to hold an authorisation to enter its airspace in order to operate charter flights from a third country to its territory.

B –    Infringement of Article 18 TFEU

66.      As the Court pointed out in paragraph 32 of Neukirchinger, it is settled case-law that the rules regarding equality of treatment between nationals and non-nationals forbid not only overt discrimination on the ground of nationality or, for a company, its seat, but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead to the same result.

67.      In the present case there is no doubt that the German legislation at issue in the main proceedings introduces a distinguishing criterion based on the place where Community air carriers have their seat.

68.      Under Paragraph 2(7) of the LuftVG, an authorisation to enter airspace is required for air carriers holding an operating licence from a Member State other than the Federal Republic of Germany.

69.      The distinguishing criterion is therefore based on the place of issue of the operating licence. Under Article 4(a) of Regulation No 1008/2008, the operating licence is issued by the competent authorities of the Member State on whose territory the undertaking applying has its principal place of business. That legislation thus plainly concerns Community air carriers having their seat in another Member State. Accordingly, since the distinguishing criterion is based on the place where the seat is situated, this distinguishing criterion imposed by German legislation ultimately leads to the same result as a criterion based on nationality. (24)

70.      That difference in treatment can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions. (25) However, that does not appear to be the situation in the present case.

71.      In the main proceedings the Generalstaatsanwaltschaft (Public Ministry) does indeed consider that such difference in treatment is justified on grounds of economic protectionism and security.

72.      As regards economic protectionism, I find it difficult to see how, in a European Union of 27, such an objective may be regarded as legitimate and justify an infringement of the principle of non‑discrimination. The exceptions to the prohibition of any discrimination based on nationality must be interpreted strictly because they strike at a fundamental right. An objective of an economic nature has repeatedly been considered by the Court not to be capable of justifying discriminatory legislation. (26) In any event I do not see how the protection of the national economy can be considered to be based on objective considerations independent of the nationality of the persons concerned.

73.      With regard to the justification founded on security advanced by the Generalstaatsanwaltschaft, although such an objective may actually be regarded as legitimate I do not believe that such a justification may be relied on in the present case.

74.      In fact, as has been seen, the German legislation requires Community air carriers holding an operating licence issued in another Member State to apply for an authorisation to enter its airspace. The issue of that authorisation is itself subject to the submission of a non‑availability declaration and confirmation of insurance and the verification of additional matters. In that regard the national court states that the circumstances which must be examined under German law in the procedure for obtaining authorisation are the same as those which must continually be examined by the Republic of Austria. By way of example, the AOC must be presented to the German authorities in accordance with Paragraph 95(1), second sentence, of the LuftVZO for review.

75.      In reality the requirement of an authorisation to enter German airspace is tantamount to a fresh review of the matters which have already been subject to scrutiny by the national authorities when they issued the operating licence under the relevant provisions of Regulation No 1008/2008.

76.      Under that regulation, only the authority of the Member State in whose territory the Community air carrier has its principal place of business is competent to verify whether the conditions of issue provided for under that regulation are satisfied. (27) Among the conditions to be fulfilled, Article 4(h) of that regulation provides that the competent authority to grant the operating licence must verify that the air carrier observes the requirements with regard to insurance laid down in Article 11 and in Regulation (EC) No 785/2004. Similarly, an operating licence cannot be issued unless that authority has verified that the air carrier holds a valid AOC. (28) It is also the only authority which may suspend or revoke that licence if those conditions are no longer fulfilled. (29)

77.      Observance of the conditions for the issue of the operating licence to which air carriers are subject is intended to ensure that those air carriers are financially healthy, in as much as the European Union legislature considered there to be a potential link between financial health and safety. (30)

78.      Therefore, in as much as the matters relating to safety raised by the Generalstaatsanwaltschaft in the dispute in the main proceedings were already taken into account by the authority competent to grant the operating licence, to conduct a fresh review of those matters is disproportionate to the legitimate objective pursued. (31)

79.      It is, moreover, interesting to note that the German Government at the hearing stated that the information requested from a Community air carrier operating charter flights from a third country to Germany is not, on the other hand, required of Community air carriers operating non-direct flights from a third country. Thus, at the hearing, the German Government confirmed that for a flight from Moscow with an intermediate stop in Vienna on the way to its final destination of Berlin (Germany), no authorisation to enter the airspace of the Federal Republic of Germany is requested of the Community air carrier. I do not see how in that case the national legislation can be justified by reasons relating to aviation safety.

80.      It follows that legislation such as that at issue in the main proceedings constitutes discrimination on grounds of nationality within the meaning of Article 18 TFEU.

81.      In the light of the reply given to the first and second questions, it is unnecessary to reply to the third question.

V –  Conclusion

82.      Having regard to the foregoing considerations I propose that the Court reply to the questions referred for a preliminary ruling by the Oberlandesgericht Braunschweig as follows:

Article 18 TFEU must be interpreted as precluding a Member State from requiring Community air carriers in possession of an operating licence issued in another Member State to hold an authorisation to enter its airspace to operate charter flights from a third country to its territory.


1 – Original language: French.


2 –      OJ 2008 L 293, p. 3.


3 –      OJ 2004 L 157, p. 7, and corrigenda OJ 2004 L 195, p. 3, and OJ 2007 L 204, p. 27.


4 –      ‘International Jet Management’.


5 –      Case 167/73 Commission v France [1974] ECR 359, paragraph 32; Joined Cases 209/84 to 213/84 Asjes and Others [1986] ECR 1425, paragraph 45; and Case C‑382/08 Neukirchinger [2011] ECR I‑139, paragraph 21.


6 –      Asjes and Others, paragraphs 43 and 44.


7 –      Commission v France, paragraph 31, and, with regard to sea transport, Case C‑440/05 Commission v Council [2007] ECR I‑9097, paragraph 57 and the case‑law cited.


8 –      Case C‑251/04 Commission v Greece [2007] ECR I‑67, paragraph 26, and Neukirchinger, paragraph 21.


9 –      See, to that effect, the judgment in Commission v France, paragraph 28.


10 –      See, inter alia, recital 5 in the preamble to Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1), and Article 2(l) of Regulation No 1107/2006 of the European Parliament and of the Council concerning the rights of disabled persons and persons with reduced mobility when travelling by air (OJ 2006 L 204, p. 1, and corrigendum in OJ 2013 L 26, p. 34).


11 –      Articles 5(3), first and second subparagraphs and 8(8), first and second subparagraphs, of that regulation.


12 –      Article 16 of Regulation No 1008/2008.


13 –      OJ 2004 L 138, p. 1.


14 –      Judgments of 5 November 2002 in Case C‑466/98 Commission v United Kingdom [2002] ECR I‑9427; Case C‑467/98 Commission v Denmark [2002] ECR I‑9519; Case C‑468/98 Commission v Sweden [2002] ECR I‑9575; Case C‑469/98 Commission v Finland [2002] ECR I‑9627; Case C‑471/98 Commission v Belgium [2002] ECR I-9681; Case C‑472/98 Commission v Luxembourg [2002] ECR I‑9741; Case C‑475/98 Commission v Austria [2002] ECR I-9797; and Case C‑476/98 Commission v Germany [2002] ECR I‑9855.


15 –      Article 1 of Regulation No 847/2004.


16 –      A traffic right may be defined as the right to operate an air service between two airports. See, to this effect, Article 2(14) of Regulation No 1008/2008.


17 –      Emphasis added.


18 –      C‑49/89 [1989] ECR 4441.


19 –      Regulation of the Council of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1, and corrigenda OJ 1987 L 30, p. 87, and OJ 1988 L 117, p. 33).


20 –      Point 65 of that Opinion.


21 –      See, inter alia, Case 346/06 Rüffert [2008] ECR I‑1989, paragraph 37, and Case C‑518/06 Commission v Italy [2009] ECR I‑3491, paragraph 62 and the case-law cited.


22 –      Paragraph 14.


23 –      The sharing of codes is a common commercial practice in the aviation sector. Each company is identified by a code composed of two letters. Under this practice an airline company markets flights under its own code although those flights are operated by another company. For example, Air France SA whose code is AF, will offer AF flights to its customers from Toronto (Canada) to Vancouver (Canada), even though the flight will be operated by a different airline, usually a regional one.


24 –      Neukirchinger, paragraph 38.


25 –      Ibid., paragraph 35.


26 –      See, inter alia, Case C‑17/92 Distribuidores Cinematográficos [1993] ECR I‑2239, paragraph 16 and the case-law cited, and, with regard to justification of legislation impeding the freedom to provide services, Case C‑398/95 SETTG [1997] ECR I‑3091, paragraph 22.


27 –      Articles 4(a) and 8 of Regulation No 1008/2008. Recital 4 in the preamble to that regulation states in this connection that, given, inter alia, the need to ensure the efficient supervision of air carriers, the same Member State should be responsible for the oversight of the air operator certificate and of the operating licence.


28 –      Article 6(1) of the Regulation.


29 –      Article 9 of the Regulation.


30 –      Recitals (3) and (6) of Regulation (EC) No 1008/2008.


31 –      See, to that effect, Neukirchinger, paragraph 42.