Yellow Cab Verkehrsbetriebs GmbH v Landeshauptmann von Wien.
Date: 2010-12-22
25. It should be noted, in that regard, that, although it is true that Articles 101 TFEU and 102 TFEU are concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those articles, read in conjunction with Article 4(3) TEU, which lays down a duty to cooperate, none the less require Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see Case C‑198/01 CIF [2003] ECR I‑8055, paragraph 45 and the case‑law cited, and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 46).
26. The Court has held that Articles 4(3) TEU and 101 TFEU are infringed where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 101 TFEU or reinforces their effects, or where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere (see CIF , paragraph 46 and the case‑law cited, and Cipolla and Others , paragraph 47).
29. In order to answer that question, it is to be stressed that free movement of services in the transport sector is not governed by Article 56 TFEU, which concerns freedom to provide services in general, but by a specific provision, namely Article 58(1) TFEU, according to which ‘[f]reedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport’ (see, to that effect, Case 4/88 Lambregts Transportbedrijf  [1989] ECR 2583, paragraph 9).
30. Application of the principles governing freedom to provide services must therefore be achieved, according to the Treaty, by introducing a common transport policy (see Case C‑17/90 Pinaud Wieger  [1991] ECR I‑5253, paragraph 7).
33. In those circumstances, the national legislation at issue in the main proceedings falls to be assessed in the light of the provisions of the TFEU on freedom of establishment, which are applicable directly to transport, and not on the basis of the Title of that Treaty on transport.
34. In that regard, it must be pointed out that the requirement of a seat or another establishment in the territory of the host Member State cannot logically constitute, as such, a barrier to, or restriction on, the freedom of establishment. As rightly pointed out by the Austrian Government, that obligation does not impose the slightest restriction on the freedom of economic operators established in other Member States to create agencies or other establishments in that territory.
45. National legislation, such as that at issue in the main proceedings, which requires authorisation to be obtained in order to operate a tourist bus service, 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 (see, by analogy, Case C‑160/07 Hartlauer  [2009] ECR I‑1721, paragraphs 36 and 39).
51. By contrast, the objective of ensuring the profitability of a competing bus service, as a reason of a purely economic nature, cannot, in accordance with the settled case‑law, constitute an overriding reason in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see Case C‑384/08 Attanasio Group  [2010] ECR I‑0000, paragraph 55 and the case‑law cited).
53. In so far as concerns the examination of proportionality, it should be noted that 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 that at issue in the main proceedings. 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 ( Hartlauer , paragraph 64 and the case‑law cited).
54. Therefore, if the national legislation at issue in the main proceedings is interpreted as meaning that the asse ssment 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, to that effect, Hartlauer , paragraph 69).