Opinion of the Advocate General — ECLI:EU:C:2010:498
Date: 2010-09-07
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Transport – Air transport – Concept – Carriage by air of passengers in a hot-air balloon for commercial purposes (Arts 12 EC, 49 EC, 51(1) EC and 80(2) EC) 2. Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Prohibited (Art. 12 EC) 3. Community law – Principles – Equal treatment – Discrimination on grounds of nationality – Prohibited (Art. 12 CE) 1. Carriage by air of passengers in a hot-air balloon for commercial purposes falls within the transport sector and, more particularly, within the air transport sector, referred to in Article 80(2) EC. While, under Article 80(2) EC, sea and air transport are, in so far as the Community legislature has not decided otherwise, not subject to the rules contained in Title V of Part Three of the EC Treaty relating to the common transport policy, they remain, on the same basis as the other modes of transport, subject to the general rules of the Treaty. However, with regard to the freedom to provide services, in accordance with Article 51(1) EC, Article 49 EC does not apply as such to the air transport sector. By contrast, the carriage by air of passengers in a hot-air balloon for commercial purposes falls within the scope of the EC Treaty and is therefore subject to a general rule of the Treaty, such as Article 12 EC. The Community legislature has adopted several measures on the basis of Article 80(2) EC which may affect that form of air transport. With regard to Regulation No 2407/92 on licensing of air carriers, it is apparent from the first two recitals in the preamble to Regulation No 2407/92 that the objective pursued by the Council, when adopting that regulation, was to establish, by 31 December 1992, an air transport policy for the internal market, comprising an area without internal frontiers in which the free movement of goods, persons, services and capital would be ensured. Such a broad objective also prima facie covers carriage by air of passengers in a hot-air balloon for commercial purposes. (see paras 19, 21-23, 26-27, 29) 2. Article 12 EC precludes legislation of a Member State which, for the organisation of balloon flights in that Member State and subject to administrative sanctions in the event of failure to comply with that legislation, requires a person resident or established in another Member State, and licensed in that second Member State to operate commercial balloon flights, to have a place of residence or company seat in the first Member State. First, the distinguishing criterion based on residence in fact leads to the same result as discrimination based on nationality because it is liable to operate mainly to the detriment of nationals of other Member States, as non-residents are in the majority of cases foreign nationals. Second, the distinguishing criterion based on the company seat amounts, in principle, to discrimination by reason of nationality. (see paras 34, 37, 44, operative part ) 3. Article 12 EC precludes legislation of a Member State which, for the organisation of balloon flights in that Member State and subject to administrative sanctions in the event of failure to comply with that legislation, requires a person resident or established in another Member State, and licensed in that second Member State to operate commercial balloon flights, to obtain a new licence, without due account being taken of the fact that the conditions of issue are, essentially, the same as those which apply to the licence already issued to that person in the second Member State. Such legislation establishes a distinguishing criterion which in fact leads to the same result as a criterion based on nationality, since the obligation imposed by that legislation concerns, in practice, primarily nationals of other Member States or companies having their seat in other Member States. Admittedly, the interest in protecting the life and health of the persons carried and the interest in ensuring the safety of air transport are undeniably legitimate objectives. However, for a Member State to require a person to obtain a new licence, without due account being taken of the fact that the conditions of issue are, essentially, the same as those applying to the licence already issued to him in another Member State, is not proportionate to the legitimate objectives pursued. Since the conditions governing the issue, in the two Member States, of the transport licences are, essentially, the same, the view must be taken that the abovementioned legitimate interests were already taken into account when the first licence was issued in the other Member State. (see paras 38-39, 42, 44, operative part)