E-1/25 Valair AG v Amt fur Volkswirtschaft
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Deadlines: Motivation ministry: 14 March 2025 Written observations: 28 April 2025
Keywords: aviation license, freedom to provide services
Subject: - Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community: Article 4; - EEA Agreement: Article 36.
Facts of the case: Appellant of the case ‘Valair AG’, an aviation company based in Liechtenstein, applied in January 2022 to extend its existing operating license for helicopters to fixed-wing aircraft. The Liechtenstein Office of Construction and Infrastructure rejected the application, and stated that the Swiss authorities (Federal Office of Civil Aviation) were responsible for such licenses under the Exchange of Notes agreement between Switzerland and Liechtenstein. Appellant lodged an appeal against the decision, stating that the Liechtenstein authorities were in fact competent, inasmuch as Liechtenstein’s Aviation Act took precedence over the Exchange of Notes. The Liechtenstein Government rejected the appeal. Valair AG then lodged an appeal against the decision with the Administrative Court. The Court ruled that the Liechtenstein Office of Economic Affairs must decide on the application.
In April 2023, Valair AG submitted its application again to the Office of Economic Affairs, which rejected it in December 2023. Valair AG appealed again in January 2024, arguing that Regulation 1008/2008 entitles them to a license as long as they meet its criteria. In June 2024, Liechtenstein adopted a new Aviation Act, transferring licensing responsibility from the Office of Economic Affairs to the new Office of Building Construction and Spatial Planning. The Board of Appeal for Administrative Batters became the competent appeals authority, and referred the case to the EFTA Court for an advisory opinion.
Request for an advisory opinion: 1. Does it follow from Article 4 of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community or any other EEA provision that the competent licensing authority of a Member State may not impose any further conditions?
2. If the first question is answered with “no”: Is a provision according to which air operator certificates (AOC) and operating licences for flights carrying passengers, cargo and/or mail for remuneration and/or hire are only issued or granted if the intended activities are actually also possible on the basis of the infrastructure existing in Liechtenstein precluded by the objective of establishing an internal aviation market and/or other principles of EEA law?
3. If the second question is answered with “no”: Is Article 9(3) of the Liechtenstein Aviation Act which de facto excludes the issue or granting of air operator certificates (AOC) and operating licences for flights carrying passengers for remuneration and/or hire using fixed-wing aircraft due to the absence of an infrastructure in Liechtenstein, in the sense of airports or airfields, compatible with Article 36 of the EEA Agreement (freedom to provide services)?
Cited (recent) case-law: C-316/10 Danske Svineproducenter; C-384/93 Alpine Investments; C-503/23 Mellano.
Policy Area: IenW
