Judgment of the Court of Justice (Second Chamber) of 27 February 2019 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Associação Peço a Palavra and Others v Conselho de Ministros
(Case C-563/17) 1
(Reference for a preliminary ruling — Freedom of establishment — Regulation (EC) No 1008/2008 — Air carrier company — Reprivatisation process — Sale of shares representing up to 61% of the share capital — Conditions — Requirement to keep the headquarters and effective management in a Member State — Public service obligations — Requirement to maintain and develop the existing national hub)
Language of the case: Portuguese
Referring court
Supremo Tribunal Administrativo
Parties to the main proceedings
Applicants: Associação Peço a Palavra, João Carlos Constantino Pereira Osório, Maria Clara Marques Pires Sarmento Franco, Sofia da Silva Santos Arauz, Maria João Galhardas Fitas
Defendants: Conselho de Ministros
Interveners: Parpública — Participações Públicas SGPS SA, TAP — Transportes Aéreos Portugueses SGPS SA
Operative part of the judgment
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as irrelevant for the purposes of assessing the compatibility with EU law of certain requirements relating to the activities carried out by an air carrier company, imposed on the purchaser of a qualified holding in the share capital of that company, in particular of the requirement that that purchaser be required to perform public service obligations and to maintain and develop that company’s national hub.
Article 49 TFEU must be interpreted as not precluding tender specifications governing the conditions to which a reprivatisation process of an air carrier company is subject from including:
a requirement that the purchaser of the shares subject to the reprivatisation process has the capacity to fulfil the performance of the public service obligations on that air carrier company, and
a requirement that the purchaser maintain that air carrier company’s headquarters and effective management in the Member State concerned, in so far as the transfer of that company’s principal place of business outside of that Member State would mean that company losing the air traffic rights conferred on it under bilateral agreements between that Member State and third countries with which that Member State has particular historical, cultural and social ties, which is for the referring court to ascertain.
Article 49 TFEU must be interpreted as precluding those tender specifications from including a requirement that the purchaser of those shares ensure that the existing national hub is maintained and developed.
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1 OJ C 424, 11.12.2017.