Michael Dobersberger v Magistrat der Stadt Wien.
Date: 2019-12-19
18


In that regard, it should be borne in mind that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a rule of EU law, the Court is in principle bound to give a ruling (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26 and the case-law cited).
19


It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited).
21


In that regard, it must be borne in mind that, where it is not obvious that the interpretation of an EU act bears no relation to the facts of the main action or its purpose, the objection alleging the inapplicability of that act to the case in the main action does not relate to the admissibility of the request for a preliminary ruling, but concerns the substance of the questions raised (see, to that effect, judgment of 4 July 2019, Kirschstein, C‑393/17, EU:C:2019:563, paragraph 28).
24


First of all, it should be observed that free movement of services in the transport sector is governed not 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 ‘freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport’ (judgment of 22 December 2010, Yellow Cab Verkehrsbetrieb, C‑338/09, EU:C:2010:814, paragraph 29 and the case-law cited), that is to say Articles 90 to 100 TFEU.
25


Transport services comprise not only any physical act of moving persons or goods from one place to another by a means of transport, but also any service which, even if it is merely incidental to such an act, is inherently linked to that act (see, to that effect, judgment of 15 October 2015, Grupo Itevelesa and Others, C‑168/14, EU:C:2015:685, paragraphs 46 and 47, and Opinion 2/15 (Free Trade Agreement with Singapore) of 16 May 2017, EU:C:2017:376, paragraph 61).
29


In that regard, it follows from Article 1(3)(a) of Directive 96/71, which is specifically referred to by the referring court in its first three questions, that that directive applies, inter alia, to a situation in which an undertaking established in a Member State posts, within the framework of the transnational provision of services, workers on its account and under its direction to the territory of another Member State, under a contract concluded between the undertaking making the posting and the party for whom the services are intended, operating in the latter Member State, provided that an employment relationship exists between that undertaking and the employee during the period of the posting (judgment of 3 April 2008, Rüffert, C‑346/06, EU:C:2008:189, paragraph 19).