The conditions relating to the location of the company’s headquarters and the public service obligations imposed by the Portuguese Government when the airline TAP was reprivatised are in line with the freedom of establishment, except for the development of the national operation centre ('hub'), Advocate General Manuel Campos Sánchez-Bordona stated in his Opinion delivered on Wednesday 21 November (Case C-563/17).
The Peço a Palavra association and four private individuals brought an administrative action before the Portuguese Supreme Administrative Court against certain conditions attached to the reprivatisation of the holding company holding the capital of TAP.
These conditions consist of the obligation to maintain in Portugal the company's registered office and effective management, the ability to fulfil the public service obligations towards air routes to the Portuguese autonomous regions, and the commitment to maintain and to develop the national hub.
The Portuguese Court has referred the matter to the Court of Justice to determine whether these conditions are in conformity with EU law and in particular the principle of freedom of establishment (Articles 49 and 54 of the Treaty).
In his Opinion, the Advocate General examines whether the above three conditions constitute justified and proportionate restrictions on the freedom of establishment.
According to Mr. Campos Sánchez-Bordona, there is an overriding reason in the general interest for imposing public service obligations. On the maintenance of the headquarters, this restriction is also necessary and proportionate because it is essential to guarantee the air traffic rights contained in the bilateral agreements concluded between Portugal and non-EU Member States (Angola, Brazil, Mozambique) with which it has historical and cultural links.
On the other hand, the Advocate General is of the opinion that the requirements to maintain and develop the national hub does not constitute a justified restriction on the freedom of establishment since it is linked to a purely economic objective, namely growth of the national economy. (Original version in French by Mathieu Bion)