OPINION OF ADVOCATE GENERAL

MISCHO delivered on 28 January 2003 (1)

(Reference for a preliminary ruling from the Oberlandesgericht Frankfurt am Main (Germany))

((Air transport – Access to the groundhandling market in Community airports – Directive 96/67/EC – Article 16 – Collection of a fee for access to airport installations – Conditions))

I ─ Community legislation

4. Under Article 16 of the Directive, headed Access to installations:

5. When the Directive was adopted by the Council, the Commission arranged for a statement to be entered in the minutes relating to the application of Article 16(3), which reads as follows: The Commission states that Article 16(3) recognises an airport's right to collect a fee from suppliers of groundhandling services and self-handling users for access to its installations.The Commission states that such a fee may be construed as a commercial charge [German version: Geschäftsgebühr] and may in particular contribute to the self-financing of the airport insofar as it is determined on the basis of relevant, objective, transparent and non-discriminatory criteria.

II ─ The main proceedings

III ─ Questions referred

4. May it even be mandatory to demand (additionally) payment of a licence fee by a self-handler and/or supplier of groundhandling services who has hitherto enjoyed free access to that market, or, as the case may be, to the self-handling sector alone, without being required to pay an additional licence fee, in order to prevent unequal treatment in relation to other self-handlers and suppliers of groundhandling services who have already hitherto been requested to pay a supplementary licence fee in addition to a user fee; or who are for the first time granted access to airport installations on the basis of the legal situation created by the Directive and are henceforth being requested to pay a licence fee for such access in addition to a further user fee for use of the installations?

5. If Article 16(3) of Directive 96/67 entitles an airport's managing body to require payment of a supplementary licence fee as described above, does a licence fee which is required to be paid in addition to a fee for use of check-in desks meet the requirements of Article 16(3) in regard to relevance, objectivity, transparency and non-discrimination where it is determined according to numbers of passengers (in this case DM 0.30 per passenger checked in)?

VI ─ Analysis

A ─ The first question

10. It is necessary to start by defining the scope of the main proceedings clearly. The question at issue is whether the operator of an airport is entitled to collect a fee in return merely for the granting of access to the market for the provision of groundhandling services.

11. This access fee, which is described by the Commission and the national court as a concession charge and which the claimant in the main proceedings terms a licence fee (Gestattungsentgelt), is payable solely in consideration of the airport operator giving the supplier of groundhandling services the opportunity of making a profit.

12. It can be distinguished from the various sums paid by providers of groundhandling services in exchange for the right to use certain infrastructures made available to them by the airport operator, such as check-in desks.

13. That type of fee is termed by the claimant in the main proceedings Nutzungsentgelt (literally: user fee). It is not the subject of any challenge in the present case.

14. The debate relative to the validity of the claimant's claim in the main proceedings is focussed on the interpretation of Article 16(3) of the Directive. This is the only one of its provisions which refers to the payment of fees to an airport operator.

15. The terms of Article 16(3) of the Directive are clear. What gives rise to an entitlement to collect fees is access to airport installations. The meaning of this provision is in my opinion entirely without ambiguity. An installation is something tangible, consisting of the airport infrastructures; it does not comprise the essentially intangible opportunity of generating a profit which may flow from the use of those infrastructures.

17. Notwithstanding this, the airport, supported by the Hellenic Republic, claims that the notion of access to installations within the meaning of Article 16(3) of the Directive, is truly directed to access to the market.

18. It is true that the airport does not challenge the distinction between a payment for access to a market and one for access to installations. However, it suggests that in using the latter term the Community legislature meant in fact to refer to the former. It raises in this regard a whole series of arguments in support of its interpretation of the wording of the Directive.

19. Those arguments are drawn, first, from considerations applying to the wording and the objective of and the background to the Directive, and, secondly, from various fundamental rights and principles.

21. It is therefore incorrect to conclude that, as the Opinion referred to above states, because access to a place may be essential to gain access to a market, in allowing payment to be made for access to a place, the Directive intended to allow a separate payment to be made for access to a market.

22. The Commission adds that it is clear from case-law that the concept of remuneration presupposes the existence of some economic consideration. In the present case, this would consist in the making available of access to the installations and their use. On the other hand, the decision to allow access to the market is an act of the legislature and not of the operator. It follows that it cannot be considered as the provision of consideration by the airport in return for which payment of remuneration would be due.

23. Nevertheless, this argument should not be held to be conclusive. The fact that it was a decision of the legislature to allow access to the market does not mean that it alone is entitled to determine the manner in which access to the market may be gained.

24. I find the following argument, also put forward by the Commission, more logically convincing. The Commission notes that Article 16(3) of the Directive requires that the amount of the remuneration be determined according to relevant criteria. According to the Commission, it is therefore necessary for that remuneration to be linked to the costs incurred by the airport in making available those installations which it requires to provide to the providers of groundhandling services and to users wishing to self-handle.

25. It follows that the criterion of relevance would not be met in the case of a fee such as that in question in the main proceedings, which is based not on the costs incurred by the airport but on the opportunity for profit arising from access to the market for groundhandling services.

26. That analysis is in my opinion applicable in any event mutatis mutandis to the criterion of objectivity of the amount of the fee which Article 16(3) of the Directive also requires, and as the defendant in the main proceedings also points out.

27.An opportunity for profit depends on a number of factors and in particular on the success and profitability of the supplier who gains access to the market. As a result, such a criterion could not, by definition, be objective in relation to the costs incurred by the airport which are not in any way dependent on factors specific to a particular supplier, but solely on considerations that can be defined as objective, namely the nature of the installations in question and the use that is made of them.

28.The interpretation provided by the wording of Article 16(3) of the Directive is supported by several of its other provisions. Mention may be made in this regard of Articles 6 and 7 of the Directive which refer to free access by suppliers of groundhandling services to the market for the provision of groundhandling services to third parties and to the freedom to self-handle. It would be difficult hold that access was free, where in reality, if one adopts the airport's reasoning, it was dependent on the payment of an access fee to a potential competitor, namely the airport operator.

29.The difference between the terms used in Articles 6 and 7 of the Directive, which lay down the principle of free access to the market, and those of Article 16(3) of the Directive, which provide for the manner of payment for access to installations, confirms the position of the Commission and the defendant in the main proceedings, namely that it is only access to airport installations that may constitute the subject of the fee envisaged in the Directive, unlike access to the market itself, which the Directive aims to derestrict.

30.The defendant in the main proceedings was moreover correct to point out at the hearing that the interpretation of Article 16(3) proposed by the airport would also result in stripping Article 16(1) of any sense. The latter requires Member States to take the necessary measures to ensure that suppliers of groundhandling services and airport users wishing to self-handle have access to airport installations to the extent necessary for them to carry out their activities. By definition, access to the market is necessary in order to carry out activities in that market. Article 16(1) of the Directive would thus have no real meaning if, as the airport argues, the phrase access to airport installations should be understood as referring to access to the market.

31.That analysis is confirmed by the recital to the preamble which relates to this provision, namely the 25th. This emphasises the need to guarantee to the relevant undertakings access to airport installations ... to the extent necessary for them to exercise their rights. These rights could only consist of the right for those undertakings to offer their services, arising from the fact, as the recital states, that the providers in question are authorised to carry out their activity. Those undertakings therefore have a right of access to the market which, having regard to the wording of the recital, implies the need for access to installations, which access may be subject to payment of a fee. There is no mention of such a possibility in the context of the right of access to the market.

32.The interpretation based on the wording of Article 16(3) of the Directive is in my opinion confirmed by an analysis of the objective of the Directive.

33.According to the airport, the principal objective of the Directive is, as indeed its name implies, access to the market. By contrast, the Directive does not seek to regulate rent paid for the use of things located at the airport, contrary to the interpretation supported both by the Commission and Lufthansa. The claimant in the main proceedings points out in this regard that Article 295 EC states that the rules governing the system of property ownership are a matter for the Member States. Moreover, to interpret the Directive as meaning that it was intended to regulate rent paid for airport installations would be contrary to the principle of subsidiarity laid down in Article 5 EC.

34.I agree entirely with the airport's analysis of the nature of the objective of the Directive. The second recital emphasises at the outset that the objective of the elimination of the restrictions on freedom to provide services in the Community should be achieved within the framework of the common transport policy. Furthermore, the fifth recital of the Directive justifies the opening-up of access to the groundhandling market by stating that this should help reduce the operating costs of airline companies and improve the quality of services provided to airport users.

35.If there is thus no doubt that the airport is correct to emphasise that the objective of the Directive is the opening-up of the market for groundhandling services, does it follow that it is right to draw the conclusions from that which the airport proposes? I do not think so.

36.The fact that the objective of the Directive is the opening-up of the market and not the regulation of rents does not in any way mean that the question of access to installations may not properly fall within its scope. On the contrary, in a case such as the present one, where it is common ground that access to the market is not possible without access to the installations themselves, it is entirely to be expected that a directive whose aim is the opening-up of the market would include a provision relating to a condition precedent to that opening-up, namely access to the relevant installations.

37.Such a case, which may be seen as comparable to the situation in which the doctrine of essential facilities falls to be applied and to which the claimant in the main proceedings itself refers, is not at all unusual in Community law. Examples drawn both from the practice of the Commission and from case-law as well as from legislation in areas such as telecommunications, energy, and transport show that it may often be necessary to regulate access to infrastructures in order to create real opportunities for access to the market.

38.It could not be said that in so doing, the Community measures in question necessarily exceeded the competence of the Community by affecting property law in the Member States, without at the same time giving that rule such an overriding importance that the realisation by the Community of its task of achieving the internal market would become impossible.

39.Moreover, it should also be pointed out that the interpretation of the Directive proposed by the claimant in the main proceedings, in terms of which the right to restrict access to the market would be justified by the Directive in rendering it subject to a fee, is logically difficult to assimilate with the objective of opening up the market. Thus, in the present case, where certain operators were paying no fee for access to the market prior to the Directive coming into force, the effect of its doing so would, according to the airport, be to allow the creation of a new impediment to access to the market, which the Directive is nevertheless supposed to promote.

40.Admittedly, it is true, as the airport points out, that the fact that Lufthansa benefited from a privilege before the coming into force of the Directive in no way gives it the right to that advantage in perpetuity. It none the less remains the case that it is paradoxical to interpret a directive intended to promote freedom as meaning that existing obstacles should be extended to those who were previously not affected by them, rather than abolished for all operators concerned.

41.The same is all the more the case where, as the fifth recital to the Directive states, the opening-up of the market should help reduce the operating costs of airline companies. It is beyond doubt that if the Directive were read as meaning that access to the market in this way could be made subject to payment by those companies, or by the suppliers of services used by them, of a specific fee, payable in addition to the user fees otherwise payable, the objective of reducing costs would be jeopardised.

42.The claimant in the main proceedings also relies on the scheme of the Directive to support its interpretation. It claims that the Directive instituted a comprehensive scheme of regulation intended to achieve an overall balancing of all interests in question, namely on the one hand those of the airports and on the other those of the suppliers of groundhandling services.

43.It is in that context that the fee for access to the market should be seen. Its aim would be to compensate airports not only for their permitting the carrying out of the specific activities for which it is to be paid, but also for all the expenses imposed on airports by the Directive.

44.The fee for access to the market contributes to the self-financing of airports and thus to realising the objective of their efficient operation. All of this would be compromised if operators were allowed to avoid payment of this fee and thereby deprive the airport of a source of funding. That loss could not be compensated for by an increase in rents, because the requirement of transparency imposed by the Directive imposes a strict separation between fees for access to the market and rents, as the latter must be apportioned to the airport services to which they relate.

45.Furthermore, to compensate for the loss of the access fee by increasing rents would mean requiring all tenants to pay for those suppliers of services who carried out their activities using access to the airport installations while at the same time renting nothing within the airport precincts.

46.The arguments of the defendant in the main proceedings should therefore be rejected as they would involve, contrary to the intention of the Community legislature, accepting only those provisions of the Directive which gave it access to the market, while ignoring those relating to the counterpart of this access, namely payment.

47.The fact remains, however, that the terms of the Directive do not support the analysis of the claimant in the main proceedings. At no point does the Directive refer to the self-financing of airports. The concept of overall compensation, referred to by the airport is not mentioned either. On the contrary, it is apparent from Recital 9 of the preamble to the Directive that the legislature took the view that free access to the groundhandling market is compatible with the efficient operation of Community airports. That statement by the legislature is not qualified by reference to any condition. This clearly shows that it did not consider that the opening-up of access to the market was liable to cause harm to the financial position of airports.

48.The wording of the Directive makes it entirely clear that the intention of the legislature was to open up access to the market to the maximum possible extent, while strictly limiting exceptions to this. Those exceptions are based on safety, security, capacity and available-space constraints. By contrast, there is no reference to the financing requirements of airports, and the Directive does not mention these in the context of access fees, which are, it should be emphasised, optional in any event.

49.It necessarily follows that the legislature did not intend to adopt the line of reasoning put forward by the claimant in the main proceedings, who suggests that the opening-up of access to the market is a burden imposed on airports, for which they would have the right to be compensated by the suppliers of groundhandling services.

50.As for the question of whether the legislature had the right to act in this manner, this is a point which will be considered in the context of the protection of fundamental rights.

51.The arguments of the claimant in the main proceedings therefore fall to be rejected on this point.

52.The claimant also considers that the historical background to the Directive supports its interpretation. It notes first of all that the initial Proposal put forward by the Commission on 10 April 1995 contemplated a fee to cover the cost of making the infrastructures necessary for the provision of groundhandling services available. Neither the new Proposal presented by the Commission on 12 March 1996 nor the Directive in the form in which it was ultimately adopted referred to this basis for recovery of costs. On the contrary, it follows from the statement entered at the instance of the Commission in the minutes of the proceedings adopting the Directive by the Council, referred to a paragraph 5 of this Opinion, that the fee referred to at Article 16(3) of the Directive was intended to form an independent source of self-financing for airports and to guarantee their efficient operation.

53.Secondly, the airport refers to the fact that the Parliament had adopted an amendment to the Commission's initial Proposal relating to the issue of payment. This amendment included the following particular provisions: Access to and shared use of airport installations for suppliers of groundhandling services and users wishing to self-handle may give rise to the collection of a fee as a charge for the costs which this access and the provision of the necessary infrastructure occasions for the airport and reflecting the level of the costs ... A fee may also be charged for access by third parties to the commercial opportunities created by the airport undertaking ...

54.According to the claimant in the main proceedings, the Commission and the Council accepted this amendment, and the Directive should therefore be interpreted as allowing for the collection of a fee for access to the market.

55.I do not agree with this analysis. The final text of the Directive shows no trace of the second subparagraph of paragraph 3 referred to above, on which the applicant relies, and the documents referred to by the airport suggest no intention on the part of the Commission or the Council to retain the amendment in question.

56.It should also be emphasised that that proposal for amendment made a very clear distinction, as is shown by the use of the word also, between the collection of a fee for access to airport installations and a fee which may be charged for access by third parties to the commercial opportunities created by the airport undertaking. The latter is plainly a fee for access to the market. It follows that the fee for access to airport installations referred to in the first subparagraph of the amendment proposed by the Parliament related to another matter. That could only be access to a specific infrastructure. Yet it was the expression access to airport installations that was retained in the final text of the Directive. It is hardly likely that the same terms would have completely changed in meaning during the course of the same legislative procedure.

57.As regards the Commission's declaration, the fact remains that it is hardly explicit. In particular, the reference to the self-financing of airports gives no indication of the nature of the fee, as its collection would contribute to that self-financing in both the scenarios at issue in this case.

58.The inevitable conclusion therefore is that an examination of the background to the Directive does not substantiate the interpretation suggested by the claimant in the main proceedings.

59.The latter also refers to Decision 98/513/EC and case-law concerning it. However, both the Commission and Lufthansa rightly observe that this decision concerned the law as in force prior to the adoption of the Directive and did not relate to the question of the nature of the fee collected by the airport operator but instead to the applicability of Article 86 of the EC Treaty (now Article 82 EC) on differences in treatment by the airport of suppliers of services.

60.The claimant in the main proceedings adds lastly that the interpretation put forward by it is the only one capable of guaranteeing the respect of the fundamental principles of Community law.

61.It refers first of all to the principle of non-discrimination

set out in Article 12 EC and notes in that regard that this prohibits any direct or indirect discrimination on grounds of nationality being made by airports in fixing fees collected by them.

Airports would be encouraged to set different rates for self-handling users and suppliers of services such as Lufthansa, who pay no fee for access to the market, on the one hand, and for suppliers of services who have always paid a fee of this kind, on the other. It would follow that airports would be bound to discriminate between national airline companies and those of other Member States. Self-handling at all the airports of another Member State served by it would rarely be profitable for an airline company. The result would for a small company be that it would require to have groundhandling services provided by a third party and in the final analysis to reimburse the fee for access to the market paid by that third party to the airport. On the other hand, in airports located in the Member State in which it was established, a national airline would by definition generate a sufficient volume of traffic to justify using self-handling and would thus be free of the requirement to pay a fee for access to the market.

Moreover, and in the same way, there would be discrimination in that large airline companies would benefit in relation to small ones. As the former could check in their own passengers, they would not require to pay a fee for access to the market, while the latter, for whom it would not be profitable to check in their own passengers, would have to use suppliers of groundhandling services who would require to continue to pay the airports the fee for access to the market that they have always being paying.

It must be stated that the whole of this reasoning is based on a fundamentally false premiss. The question in the present case is not whether the claimant in the main proceedings is obliged to require payment of a fee for access to the market by Lufthansa in order to place it on an equal footing with all the other operators from whom such a payment is apparently demanded. The question put by the national court is whether, after the coming into force of the Directive, the airport is entitled to demand from any party, be it a supplier of services or a user wishing to self-handle, payment of a fee for access to the market.

It is thus not a question of whether some users may be required to pay a fee while others are not, but whether a fee is acceptable as a matter of principle. If, as I believe, that is not the case, no operator would be charged a fee.

In light of the foregoing, I propose to answer the first question as follows: Council Directive 96/67/EC of 15 October 1996 ─ and in particular Article 16(3) read in conjunction with Recital 25 in the preamble thereto ─ should be interpreted as meaning that the managing body of an airport within the meaning of Article 3 is not entitled to demand from a self-handler and/or a supplier of handling services payment of a separate licence fee for the grant of access to airport installations in the sense of an access fee for the opening-up of a commercial opportunity. On the other hand, the managing body of an airport is entitled to collect a fee for the use of airport installations, the amount of which is to be determined in accordance with the criteria laid down under Article 16(3) of the said Directive and having regard to the interest of the managing body of the airport in achieving a profit.

B ─The second, third, fourth and fifth questions

These questions address the procedures for collection of a possible fee for access to the market, and therefore arise only in the event that the answer to the first question were that the collection of a fee of that kind was acceptable in principle. I have explained above why I am of the opinion that the Directive does not allow a fee to be charged for access to the market. It follows that there is no need to answer these questions.

For the foregoing reasons, I propose to answer the questions referred by the Oberlandesgericht Frankfurt am Main in the following terms: Council Directive 96/67/EC of 15 October 1996 ─ and in particular Article 16(3) read in conjunction with Recital 25 in the preamble thereto ─ should be interpreted as meaning that the managing body of an airport within the meaning of Article 3 is not entitled to demand from a self-handler and/or a supplier of handling services payment of a separate licence fee for the grant of access to airport installations in the sense of an access fee for the opening-up of a commercial opportunity. On the other hand, the managing body of an airport is entitled to collect a fee for the use of airport installations, the amount of which is to be determined in accordance with the criteria laid down under Article 16(3) of the said Directive and having regard to the interest of the managing body of the airport in making a profit.

Original language: French.

OJ 1996 L 272, p. 36.

Proposal for a Council Directive on access to the groundhandling market at Community airports (OJ 1995 C 142, p. 7).

Case C-7/97 [1998] ECR I-7791.

An essential facility can be a product such as a raw material or a service, including provision of access to a place such as a harbour or airport ... (paragraph 50 of that Opinion).

Commission Decision 94/19/EC of 21 December 1993 relating to a proceeding pursuant to Article 86 of the EC Treaty (IV/34.689 ─ Sea Containers v Stena Sealink ─ Interim measures) (OJ 1994 L 15, p. 8).

Case T-128/98 Aéroports de Paris v Commission [2000] ECR II-3929.

Cited above.

Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990 L 192, p. 10).

European Parliament and Council Directive 96/92/EC of 19 December 1996 concerning common rules for the internal market on electricity (OJ 1997 L 27, p. 20).

Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports (OJ 1993 L 14, p. 1).

See Articles 6(2), 7(2), and 9.

See the 11th and 14th recitals.

Amended proposal for a Council Directive on access to the groundhandling market at Community airports (OJ 1996 C 124, p. 19).

Commission Decision of 11 June 1998 relating to a proceeding under Article 86 of the EC Treaty (IV/35.613 ─ Alpha Flight Services/Aéroports de Paris) (OJ 1998 L 230 p. 10).

Case C-7/97 [1998] ECR I-7791.