Criminal proceedings against International Jet Management GmbH.
Date: 2014-03-18
39. In the present case, while it is true that the EU legislature has not, at this stage, under the shared competence conferred on it in the transport field by Article 4(2)(g) TFEU, adopted measures based on Article 100(2) TFEU on liberalisation of air transport services covering the routes between Member States and third countries, Article 18 TFEU may nevertheless be applied to such services, provided that they fall within the scope of application of the Treaties, within the meaning of that latter article (see, to that effect, Neukirchinger , paragraph 21 and the case-law cited).
57. According to the Court’s settled case-law, Article 56 TFEU requires not only the elimination of all discrimination against providers of services on grounds of nationality or the fact that they are established in a Member State other than that where the services are to be provided, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (Case C‑475/11 Konstantinides [2013] ECR, paragraph 44 and the case-law cited).
64. 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 (Case C‑115/08 ČEZ  [2009] ECR I‑10265, paragraph 92, and Neukirchinger , paragraph 32).
68. 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 (Case C‑209/03 Bidar  [2005] ECR I‑2119, paragraph 54, and Neukirchinger , paragraph 35).
70. So far as concerns the protection of the national economy, this is an objective of a purely economic nature which cannot justify a difference in treatment such as that at issue in the main proceedings (see by analogy, as regards the justification of restrictions on the fundamental freedoms, Case C‑398/95 SETTG  [1997] ECR I‑3091, paragraph 23, and Case C‑20/09 Commission  v Portugal  [2011] ECR I‑2637, paragraph 65).
74. Thus, for the Federal Republic of Germany to oblige an air carrier, such as International Jet Management, which holds an operating licence issued by another Member State, to be issued with an authorisation, such as that at issue in the main proceedings, to enter its airspace is not proportionate to the legitimate objective pursued. The safety interests to which the public prosecutor’s office refers were already taken into account when the competent Austrian authority issued the operating licence to International Jet Management (see, to that effect, Neukirchinger , paragraph 42).
76. It follows that legislation such as that at issue in the main proceedings constitutes discrimination on grounds of nationality, aggravated by the fine imposed in the event of failure to comply therewith (see, to that effect, Neukirchinger , paragraph 43).