Proceedings brought by CX.
Date: 2018-07-11
37


To determine whether national legislation falls within the scope of one or other of those freedoms, it follows from the case-law of the Court that the purpose of the legislation concerned must be taken into consideration (judgments of 23 January 2014, DMC, C‑164/12, EU:C:2014:20, paragraph 29 and the case-law cited, and of 7 September 2017, Eqiom and Enka, C‑6/16, EU:C:2017:641, paragraph 40).
45


It should be recalled here that it is apparent from Article 15 of the EEC-Turkey Association Agreement and Article 42(1) of the Additional Protocol that the provisions of EU law on transport and the acts adopted pursuant to those provisions may be extended by the Association Council to the Republic of Turkey, with due regard to its geographical situation. That implies that the rules to be adopted in this field are not necessarily the same as those applicable under the FEU Treaty, and that the extension to the Republic of Turkey of the transport provisions of the FEU Treaty is merely optional (see, to that effect, judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraphs 96 and 97).
47


So, as long as the Association Council has not adopted rules on transport services pursuant to Article 15 of the EEC-Turkey Association Agreement and Article 42(1) of the Additional Protocol, the conditions of access of Turkish hauliers to the EU transport market remain governed by the national legislation of the Member States and the bilateral agreements concluded between the Member States and the Republic of Turkey. It follows that, in a situation such as that at issue in the main proceedings, transport services can be provided only within the limits of the quotas determined in those bilateral agreements or in national legislation (see, by analogy, judgment of 13 July 1989, Lambregts Transportbedrijf, 4/88, EU:C:1989:320, paragraph 14).
48


For all that, Article 41(1) of the Additional Protocol has direct effect and may therefore be relied on before the national authorities to prevent the application of inconsistent rules of national law (judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraphs 58 and 59 and the case-law cited).
49


That provision lays down a standstill clause containing an obligation for the Member States of the European Union not to adopt any new measure whose purpose or effect would be to subject the establishment of a Turkish national or the provision of a service by him to stricter conditions than those which applied when the Additional Protocol entered into force with regard to the Member State concerned (see judgments of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraphs 58, 59 and 66 and the case-law cited; of 19 February 2009, Soysal and Savatli, C‑228/06, EU:C:2009:101, paragraph 47 and the case-law cited; of 24 September 2013, Demirkan, C‑221/11, EU:C:2013:583, paragraph 39 and the case-law cited; and of 10 July 2014, Dogan, C‑138/13, EU:C:2014:2066, paragraph 26), namely, for the Republic of Austria, 1 January 1995.
50


As the Court has previously stated, that obligation also applies in the field of transport services (judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraphs 92 and 93).
51


To determine whether the standstill obligation thus stated precludes national legislation such as that at issue in the main proceedings, it must be examined whether that legislation entails a restriction on the freedom to provide services and, if so, whether that restriction must be considered to be a new one (judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraph 110).
52


As to whether national legislation entails a restriction on the freedom to provide services, it must be recalled that, according to settled case-law of the Court, national legislation which makes the provision of services in national territory by an undertaking established in another Member State subject to the issue of an authorisation constitutes a restriction on the fundamental principle enshrined in Article 56 TFEU (see, to that effect, judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraph 111 and the case-law cited).
54


As to whether the national legislation at issue in the main proceedings is a new restriction, which the Austrian Government contests, it is for the national courts, which alone have jurisdiction to interpret national law, to determine whether that legislation is new in character, in that its consequence is to make the position of Turkish operators worse than their position under the rules applicable to them in Austria on the date of the entry into force of the Additional Protocol for the Republic of Austria, namely 1 January 1995 (see, by analogy, judgment of 21 October 2003, Abatay and Others, C‑317/01 and C‑369/01, EU:C:2003:572, paragraph 116). As the Advocate General observes in points 79 and 80 of his Opinion, it appears — subject to verification by the referring court — that, having regard to the fact that the quota system provided for by the Austria-Turkey Agreement already existed at the time of the accession of the Republic of Austria to the European Union, there can be no question of a new restriction within the meaning of Article 41(1) of the Additional Protocol.