In the Opinion of Judge Advocate General Yves Bot of the Court Justice of the European Union (CJEU), German legislation requiring Community carriers from other Member States to apply for special permission before operating flights from outside the EU into Germany contravenes the principle of non-discrimination, which is enshrined in EU law. If the forthcoming judgment reflects the Advocate General’s findings, charter carriers operating certain flights into the EU will gain flexibility, time and cost savings.
In this case a German Regional Court referred questions to the CJEU, in the context of criminal proceedings against International Jet Management GmbH. The Austrian business jet operator had failed to pay administrative fines in respect of charter flights operated from outside the EU into Germany, without the requisite permission under German law.
The German Court sought a preliminary ruling on whether German legislation requiring business jet operators to obtain special permission to make charter flights (i.e. commercial non-scheduled traffic) into the EU from Non-EU countries even though they have an operating licence in accordance with Regulation (EC) 1008/2008 on common rules for operating in the Community (Community carriers) is in breach of the non-discrimination provisions in Article 18 of the Treaty on the Functioning of the European Union (TFEU).
As with a number of other EU Member States, Germany requires Community carriers established (headquartered) in other Member States to apply for permission to operate charter flights from non-EU countries. An application for permission must be made to the licensing authority no later than two business days before the scheduled departure of the flight, and if there are four or more flights permission must be requested at least four weeks in advance. The application must be submitted together with a statement that no German carrier has capacity to operate the proposed route (known as the Objections Process), aircraft registration, airworthiness and noise certification, together with the operator’s security manual and insurance documentation.
The grounds for requiring special permission
The German Government submitted that the rules were in place on the grounds of air safety and security, and that Article 18 of the TFEU did not apply to aviation in this context. It was contended by the operator that being licensed under Regulation (EC) 1008/2008 pre-empted any argument on grounds of safety, as this Regulation provides that all licensed Community carriers have met safety and other necessary requirements to operate into and within the EU, and that there were no justified security grounds. The operator submitted that the rationale for the rules on incoming flights was economic and protective. While the German Government acknowledged an economic element later in proceedings, the air safety and security arguments were maintained.
The Advocate General opined that the German rule distinguished between Community carriers established in different Member States. As German legislation authorising access to its airspace requires non-German carriers to obtain a special license, this results in discrimination within the meaning of Article 18 of the TFEU, which does apply to aviation cases in this context.
Furthermore, the Advocate General found that economic protectionism was not a legitimate justification for rules which were in breach of the principle of non-discrimination, and that ensuring compliance security rues was the jurisdiction of the Member State issuing the Community carrier’s operating license.
Effect of a similar judgment
It remains to be seen whether the Advocate General’s opinion will be upheld in the Court’s forthcoming judgment, but in practice the judgement will often reach the same conclusion as the Opinion in a preliminary ruling procedure. Such a ruling will be welcomed by charter operators flying into Germany, and into other EU countries in the EU with equivalent restrictions. While some countries like the UK have liberalised the process for such incoming charter flights in the interest of competition (and will continued to do so in forthcoming legislative changes, following the DfT consultation which concluded in July 2013), a number of EU countries such as Germany, Spain and Portugal maintain them.
A judgment consistent with the Opinion will save Community carriers operating into the EU both time and cost in many cases. This is likely to be welcomed by charter operators, whose clients often require confirmed flights on short notice. It will also increase competition between Community carriers for this type of charter service, in countries which have maintained protective policies.
Quentin Bargate, Senior Partner
Lauren Payne, Associate
Look out for further updates following the CJEU’s Judgment in Case C-628/11, and on the UK’s relaxation of the rules on incoming charter flights into the UK.