Opinion of the Advocate General — ECLI:EU:C:2013:279
Date: 2013-04-30
Language of the case: German
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Grand Chamber), 18 March 2014 1. Transport — Air transport — Private flights in non-scheduled traffic from a third country to a Member State — Air carrier holding an operating licence issued by another Member State — Legislation of the first Member State requiring that carrier to obtain an authorisation to enter the airspace of that State — No such requirement for air carriers holding an operating licence issued by that first Member State — Applicability of the principle of non-discrimination on grounds of nationality (Art. 18 TFEU) 2. EU law — Principles — Equal treatment — Discrimination on grounds of nationality — Prohibition — Private flights in non-scheduled traffic from a third country to a Member State — Air carrier holding an operating licence issued by another Member State — Legislation of the first Member State requiring that carrier to obtain an authorisation to enter the airspace of that State — No such requirement for air carriers holding an operating licence issued by that first Member State — Grant of that authorisation only where the latter air carriers are unavailable to carry out the flights — Unlawful (Art. 18 TFEU; European Parliament and Council Regulation No 1008/2008, Arts 2, point 26 and 4(a)) 1. Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, is applicable to a situation in which a first Member State requires an air carrier holding an operating licence issued by a second Member State, in accordance with Regulation No 1008/2008 on common rules for the operation of air services in the Community, to obtain an authorisation to enter the airspace of the first Member State to operate private flights in non-scheduled traffic from a third country to that first Member State, although such an authorisation is not required for air carriers holding an operating licence issued by that first Member State. (see para. 62, operative part 1) 2. Article 18 TFEU, which enshrines the general principle of non-discrimination on grounds of nationality, must be interpreted as precluding legislation of a first Member State which requires, on pain of a fine, an air carrier holding an operating licence issued by a second Member State to obtain an authorisation to enter the airspace of the first Member State to operate private flights in non-scheduled traffic from a third country to that first Member State, although such an authorisation is not required for air carriers holding an operating licence issued by that first Member State, and which makes the grant of that authorisation subject to production of a declaration confirming that the air carriers holding an operating licence issued by that first Member State are either not willing to operate those flights or are prevented from operating them. Such legislation establishes a distinguishing criterion which in fact leads to the same result as a criterion based on nationality. In so far as, in accordance with Article 4(a) of Regulation No 1008/2008 on common rules for the operation of air services in the Community, the operating licence is issued by the competent authority of the Member State in which an air carrier has its principal place of business within the meaning of Article 2, point 26, of that regulation, such legislation in practice places at a disadvantage only air carriers with their seat in another Member State. The same is also true, a fortiori, of legislation of a first Member State which requires only those air carriers holding an operating licence issued by another Member State, in order to be granted an authorisation to enter the airspace of the first Member State in respect of flights from third countries, to produce a non-availability declaration confirming that the air carriers holding an operating licence issued by the first Member State are either not willing to operate those flights or are prevented from operating them. Consequently, such legislation, which cannot be justified by the objectives of protection of the national economy and of safety, constitutes discrimination on grounds of nationality, aggravated by the fine imposed in the event of failure to comply therewith. (see paras 65-67, 70-77, operative part 2)