Michael Neukirchinger v Bezirkshauptmannschaft Grieskirchen.
Date: 2011-01-25
21. 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 (Case 167/73 Commission  v France  [1974] ECR 359, paragraph 32, and Joined Cases 209/84 to 213/84 Asjes and Others  [1986] ECR 1425, paragraph 45).
22. 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 (see, to that effect, Case C-49/89 Corsica Ferries France  [1989] ECR 4441, paragraph 10 and the case-law cited, and Case C‑467/98 Commission  v Denmark  (‘Open Skies’) [2002] ECR I‑9519, paragraph 123).
23. With regard to the carriage by air of passengers in a hot-air balloon for commercial purposes, such as that at issue in the main proceedings, it should be noted that the Community legislature has adopted several measures on the basis of Article 80(2) EC which may, as observed by the European Commission, affect that form of air transport. That applies, for example, at the time of the facts of the main proceedings, in regard to Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (OJ 2002 L 240, p. 1) and to Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation (OJ 1991 L 373, p. 4), amended by Regulation (EC) No 1900/2006 of the European Parliament and of the Council of 20 December 2006 (OJ 2006 L 377, p. 176).
30. Consequently, in order to provide the referring court with a useful answer, the questions referred must be examined from the perspective of Article 12 EC, which enshrines the general principle of non-discrimination on grounds of nationality (see, inter alia, Case C‑40/05 Lyyski  [2007] ECR I‑99, paragraph 33, and Case C‑222/07 UTECA  [2009] ECR I‑1407, paragraph 37).
First, second and third questions
32. In that regard, it is settled case-law that the rules regarding equality of treatment between nationals and non-nationals forbid not only overt discrimination by reason of nationality or, in the case of a company, its seat, but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead to the same result (see, inter alia, Case C-115/08 ČEZ  [2009] ECR I‑10265, paragraph 92 and case-law cited).
34. With regard, first, to the distinguishing criterion based on residence, this in fact leads to the same result as discrimination based on nationality, since 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 (see, inter alia, to that effect, Case C-224/97 Ciola [1999] ECR I-2517, paragraph 14; Case C-388/01 Commission  v Italy  [2003] ECR I‑721, paragraph 14; and Case C-209/03 Bidar  [2005] ECR I‑2119, paragraph 53).
35. Such a difference in treatment can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim of the national provisions ( Bidar , paragraph 54 and case-law cited).
41. With regard to that argument, it must be borne in mind that it is the task of the Court of Justice to take account, under the division of jurisdiction between the European Union courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the question put to it is set (see Case C‑475/99 Ambulanz Glöckner   [2001] ECR I‑8089, paragraph 10, and Case C‑153/02 Neri  [2003] ECR I‑13555, paragraph 35). It is therefore not for the Court to rule on a finding such as that made by the referring court with regard to the similarity between the legislation of the two Member States concerned with regard to the conditions under which the licences at issue in the main proceedings are issued.
42. So far as concerns the protection of the interests to which the Austrian Government refers, these are undeniably legitimate objectives. However, for a Member State to require a person such as Mr Neukirchinger 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, as the Polish Government and the Commission correctly observe, proportionate to the legitimate objectives pursued. Since the conditions, in the two Member States, governing the issue of the transport licences at issue in the main proceedings are essentially the same, the view must be taken that the interests to which the Austrian Government refers were already taken into account when the first licence was issued in Germany.
43. It follows that legislation such as that at issue in the main proceedings constitutes, in reality, discrimination on grounds of nationality, aggravated by the administrative sanctions imposed in the event of failure to comply therewith.