Austria: reference for preliminray ruling in regard to the operation of a city tours coach service

The applicant company applied for a business permit to run a city tours coach service from fixed stopping points in accordance with a fixed time table. Municipality of Vienna at first instance denied the permit on the grounds that the service would economically endanger a competing company running a similar service and applicant had no registered office in Austria.Upon appeal of the applicant, the “Unabhängiger Verwaltungssenat Wien” filed a reference for premliminary ruling to the ECJ, asking1) whether it was compatible with the freedom of establishment and the freedom to provide services within the meaning of Article 49 et seq. EC and with EU competition law for the purposes of Article 81 et seq. EC for a provision of national law relating to the grant of authorisation to operate a motor vehicle service, and thus to provide public transport, where fixed stopping points are called at regularly in accordance with a timetable, to lay down the following as conditions for such authorisation:that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority before commencing operation of the service and in particular at the time the licence is granted;that the EU undertaking making the application must already have a registered office or a branch in the State of the authorising authority at the latest from the time operation of the service commences?2) whether it was compatible with the freedom of establishment and the freedom to provide services within the meaning of Article 49 et seq. EC and with EU competition law for the purposes of Article 81 et seq. EC for a provision of national law relating to the grant of authorisation to operate a motor vehicle service, and thus to provide public transport where fixed stops are called at regularly in accordance with a timetable, to provide that authorisation is to be refused where, if the motor vehicle service applied for commences, the revenues of a competing undertaking running on a partially or entirely identical short route will be so substantially reduced by this service that the continued running of the service operated by the competing undertaking will no longer be economically viable?Given ECJ’s established jurisdiction, I wonder how there can be doubt that the requirement of a registred office in Austria infringes freedom of services.The refrence for preliminary ruling (case C-338/09 – Yellow Cab) is available for download here>>.

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