Keywords

Summary



Keywords

1. Freedom of movement for persons – Freedom of establishment – Restrictions

(Art. 49 TFEU)

2. Freedom of movement for persons – Freedom of establishment – Restrictions

(Art. 49 TFEU)

Summary

1. Article 49 TFEU must be interpreted as opposing the legislation of a Member State, which, for the purposes of the grant of authorisation to operate a public urban bus service, where fixed stopping points are called at regularly according to a fixed timetable, requires applicant economic operators established in another Member State to hold a seat or another establishment in the territory of the host Member State even before being authorised to operate that service.

An economic operator exercising ordinary care would not be willing to make investments, which could well be significant, if completely unsure whether such authorisation will be granted or not. In addition, the restriction brought about by such a requirement does not appear to be justified in any way by the objectives relating to the need to ensure equal conditions for competition in the operation of bus services, and to ensure that the social and employment law in force in the Member State concerned is observed.

By contrast, Article 49 TFEU must be interpreted as not precluding national legislation which provides for an establishment requirement where such a requirement does not apply until after that authorisation has been granted and before the applicant commences operation of the public transport service.

(see paras 37-38, 41, operative part 1)

2. Article 49 TFEU must be interpreted as opposing national legislation which provides for the refusal of the grant of authorisation to operate a tourist bus service as a result of the reduced profitability of a competing undertaking which has been authorised to operate a service which is partially or entirely identical to the one applied for, on the sole basis of the statements of that competing undertaking.

Such national legislation constitutes, in principle, a restriction of freedom of establishment within the meaning of Article 49 TFEU, in that it seeks to restrict the number of service providers, notwithstanding the alleged absence of discrimination on grounds of the nationality of the persons concerned.

Such legislation cannot be justified by the objective of ensuring the profitability of a competing bus service, because such an objective, as a reason of a purely economic nature, cannot constitute an overriding reason relating to the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty. In addition, in so far as concerns the examination of proportionality, a prior administrative authorisation scheme cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of European Union law, in particular those relating to a fundamental freedom such as the freedom of establishment. Also, if a prior administrative authorisation scheme is to be justified even though it derogates from a fundamental freedom, it must be based on objective, non-discriminatory criteria known in advance, in such a way as adequately to circumscribe the exercise of the national authorities’ discretion. Therefore, if the national legislation is interpreted as meaning that the assessment of an application for authorisation is to be carried out by the competent national authority on the sole basis of the statements made by the authorised service provider in relation to the profitability of his undertaking, even though that undertaking is a direct potential competitor of the undertaking applying for authorisation, such a means of assessment would be contrary to the rules of the European Union for it would be liable to affect the objectivity and impartiality of the treatment of the application for authorisation.

(see paras 45-46, 51, 53-55, operative part 2)