CJEU: Non-discrimination on grounds of nationality and free movement of services apply also to air carriers licensed by EU Member States

The Court of Justice of the EU (CJEU) ruled in its judgment of 18 March 2014 that an EU Member State (MS) may not deny access to its airspace to an air carrier licensed by another MS. Such denial violates Arts 18 and 56 of the Treaty of the Functioning of the EU, which lay down respectively the principle of non-discrimination on grounds of nationality between EU nationals and the freedom of such national to provide services across the EU (Case C-628/11).

The case concerned an air carrier licensed by Austria, which was conducting charter flights from Moscow (Russia) and Ankara (Turkey) to Germany. The German authorities denied the Austrian carrier access to the German airspace, because it failed to abide by certain provisions of German law (§ 2 (7) LuftVG and §§ 94 et seq. LuftVZO). These provisions foresee that in order for a non-German air carrier to be granted permission to conduct operations to or from Germany, it must, among others, produce a declaration that German carriers were either not willing to operate the flight in question or were prevented from operating it.

The CJEU underlined that operations of EU air carriers (Community air carriers) are regulated by Regulation (EC) Nr. 1008/2008. The Regulation lays down uniform requirements for the licensing of air carriers, which must be respected by all MS. This means that the competent licensing authority of each MS must ensure that air carriers under its jurisdiction comply with these requirements. However, once such compliance has been verified, the authorities of other MS are obliged to recognize the certificate issued and permit to the air carrier access to their airspace and airports. The Court made clear that the provisions of Regulation 1008/2008 apply also to EU air carriers conducting operations to or from non-EU MS. Any stipulations of national law laying down additional requirements, such as these of the German law, are contrary to the fundamental EU principles of non-discrimination based on nationality (Art. 18 TFEU) and of freedom to provide services within the whole EU (Art. 56 TFEU).

You can find the full text of the CJEU judgment here.