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Case C-382/08: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria) lodged on 25 August 2008 — Michael Neukirchinger v Bezirkshauptmannschaft Grieskirchen
ECLI:EU:UNKNOWN:62008CN0382
62008CN0382
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Official Journal of the European Union
C 285/26
(Case C-382/08)
(2008/C 285/42)
Language of the case: German
Referring court
Parties to the main proceedings
Applicant: Michael Neukirchinger
Defendant: Bezirkshauptmannschaft Grieskirchen
Questions referred
1.Is Article 49 et seq. of the Treaty establishing the European Community to be interpreted as precluding a national provision which requires a person who is established in another Member State, and who is licensed, pursuant to the legal order of that Member State, to operate commercial balloon flights, to have a registered office or place of residence in Austria in order to be able to operate balloon flights in that Member State (Paragraph 106 of the Luftfahrtgesetz (Austrian Law on Aviation) BGBl No 253/1957, last amended by BGBl I No 83/2008)?
2.Is Article 49 et seq. of the Treaty establishing the European Community to be interpreted as precluding a national provision under which the holder of a licence to operate commercial balloon flights who is established in another Member State and recognised under the legal order of that Member State is required to obtain a further licence for the operation of balloon flights in another Member State, where the test requirements in respect of that licence prove to be identical in substance to those of the licence already granted in the country of origin, albeit with the additional proviso that the applicant for the licence must have his registered office or place of residence within the territory of the country (in this case, in Austria)?
3.Are the provisions of Paragraph 102, in conjunction with Paragraphs 104 and 106, of the Austrian Luftfahrtgesetz incompatible with Article 49 EC if a licence-holder established in Germany is prosecuted in Austria under administrative criminal law for operating pursuant to his licence and, as a result, his access to the market is hindered, the background hereto being that under Paragraph 106(1) of the Luftfahrtgesetz it is impossible to obtain such a licence or an operating licence (‘Betriebsaufnahmebewilligung’) without establishing a separate place of business and/or residence, and without re-registering in Austria a hot-air balloon that is already registered in Germany?