Case C-382/08: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria) lodged on 25 August 2008 — Michael Neukirchinger v Bezirkshauptmannschaft Grieskirchen
Date: 2008-08-25
Institutions: Court of Justice
Subjects: Austria, EU Member State, Germany, air transport, interpretation of the law, market access, marketing, trade licence

C 285/26

EN

Official Journal of the European Union

8.11.2008

Reference for a preliminary ruling from the Unabhängiger
Verwaltungssenat des Landes Oberösterreich (Austria)
lodged on 25 August 2008 — Michael Neukirchinger v
Bezirkshauptmannschaft Grieskirchen

Reference for a preliminary ruling from the Finanzgericht
Hamburg (Germany) lodged on 1 September 2008 — Brita
GmbH v Hauptzollamt Hamburg-Hafen

(Case C-382/08)

(2008/C 285/42)

Language of the case: German

(Case C-386/08)

(2008/C 285/43)

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat des Landes Oberösterreich

Parties to the main proceedings

Applicant: Michael Neukirchinger

Defendant: Bezirkshauptmannschaft Grieskirchen

Questions referred

1. Is Article 49 et seq. of the Treaty establishing the European
Community to be interpreted as precluding a national provi-
sion which requires a person who is established in another
Member State, and who is licensed, pursuant to the legal
order of that Member State, to operate commercial balloon
flights, to have a registered office or place of residence in
Austria in order to be able to operate balloon flights in that
the Luftfahrtgesetz
(Paragraph 106 of
Member State
(Austrian Law on Aviation) BGBl No 253/1957,
last
amended by BGBl I No 83/2008)?

2. Is Article 49 et seq. of the Treaty establishing the European
Community to be interpreted as precluding a national provi-
sion under which the holder of a licence to operate commer-
cial balloon flights who is established in another Member
State and recognised under the legal order of that Member
State is required to obtain a further licence for the operation
of balloon flights in another Member State, where the test
requirements in respect of that licence prove to be identical
in substance to those of the licence already granted in the
country of origin, albeit with the additional proviso that the
applicant for the licence must have his registered office or
place of residence within the territory of the country (in this
case, in Austria)?

3. Are the provisions of Paragraph 102,

in conjunction with
the Austrian Luftfahrtgesetz
Paragraphs 104 and 106, of
incompatible with Article 49 EC if a licence-holder estab-
lished in Germany is prosecuted in Austria under administra-
tive criminal law for operating pursuant to his licence and, as
a result, his access to the market is hindered, the background
hereto being that under Paragraph 106(1) of the Luftfahrtge-
setz it is impossible to obtain such a licence or an operating
licence (‘Betriebsaufnahmebewilligung’) without establishing a
separate place of business and/or residence, and without re-
registering in Austria a hot-air balloon that is already regis-
tered in Germany?

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Brita GmbH

Defendant: Hauptzollamt Hamburg-Hafen

Questions referred

the fact

treatment

in light of

that preferential

1. Should the importer of goods which originate in the West
Bank be granted the preferential treatment requested in any
is
event
provided under two agreements which come under consid-
eration in the present case — namely the ‘Euro-Mediterra-
nean Agreement establishing an association between the
European Communities and their Member States, of the one
part, and the State of Israel, of the other part’ (EMA) (1) and
the ‘Euro-Mediterranean Interim Association Agreement on
trade and cooperation between the European Community, of
the one part, and the Palestine Liberation Organisation (PLO)
for the benefit of the Palestinian Authority of the West Bank
and the Gaza Strip, of the other part’ (EMI-PLO) (2) — for
goods originating in the territory of the State of Israel or in
the West Bank, even if only a formal certificate of origin
from Israel is submitted?

If Question 1 is to be answered in the negative:

2. Is the customs authority of a Member State bound under the
EMA, vis-à-vis an importer who is requesting preferential
treatment for goods which have been imported into Com-
munity territory, by a proof-of-origin certificate issued by the
Israeli authority — and the verification procedure under
Article 32 of Protocol 4 to the EMA has not been opened —
as long as the customs authority has no doubt as to the
originating status of the goods other than that as to whether
the goods originate in an area which is merely under Israeli
control — that is, pursuant to the terms of the Israeli-Palesti-
nian Interim Agreement of 1995 — and as long as no
dispute-settlement procedure was carried out pursuant to
Article 33 of Protocol 4 to the EMA?

If Question 2 is to be answered in the negative: