Opinion of the Advocate General — ECLI:EU:C:2002:115
Date: 2002-02-21
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Action for annulment;Appeal - unfounded
Origin: France

Summary of the Judgment 
1. Appeals — Procedural requirements — Production of all annexes referred to in 
pleadings — Failure to comply ivith requirement in respect of documents previously 
produced before the Court of First Instance — Inadmissibility of the appeal — 
Excluded 
(Rtdes of Procedure of the Court of Justice, Art. 37(1) and (4); Art, 112(1) and (2)) 
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SUMMARY — CASE C-82/01 P 
2. Competition — Transport — Rules on competition — Air transport — Regulation 
No 3975/87 — Scope — Activities directly relating to the provision of air transport 
services — Included — Airport management activity — Excluded 
(Council Regulations Nos 17 and 3975/87) 
3. Appeals — Pleas in law •—• Distortion of national law accepted as evidence — 
Admissibility 
(EC Treaty, Art. 168a (now Art. 225 EC); EC Statute of the Court of Justice, Art. 51, 
first para.) 
4. Competition — Community rules •—· Undertaking — Definition — Public corpor­
ation managing airport — Included 
(EC Treaty, Art. 86 (now Art. 82 EC)) 
5. Competition •— Dominant position — Definition — Public corporation holding a 
legal monopoly in the management of airport facilities indispensable for the provision 
of groundhandling services — Included 
(EC Treaty, Art. 86 (now Art. 82 EC)) 
6. Competition — Dominant position — Abuse — Price discrimination on the part of 
airport management between undertakings providing groundhandling services to third 
parties and self-handling undertakings 
(EC Treaty, Art. 86, second para., subpara, (c), (now Art. 82, second para., subpara, 
(c) EC)) 
1. Article 112(1) and (2) of the Rules of 
Procedure of the Court of Justice 
setting out the requirements to be 
complied with on an appeal provide 
for the application of Article 37 of 
those Rules, which states that every 
pleading must be 'accompanied by all 
annexes referred to therein'. However, 
failure to comply with that require­
ment cannot, in the absence of preju­
dice to the other parties to the appeal, 
be regarded as a defect sufficient to 
render inadmissible an appeal in which 
reference is made to documents which 
were not annexed to it, but which were 
annexed to the application lodged 
before the Court of First Instance, as 
nowhere do the Rules of Procedure 
provide that failure to comply with 
that requirement renders the appeal 
inadmissible. 
(see paras 9-12) 
2. Regulation No 3975/87 laying down 
the procedure for the application of the 
rules on competition to undertakings in 
the air transport sector only applies to 
activities directly relating to the supply 
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of air transport services, which are 
therefore excluded from the scope of 
Regulation No 17. 
Airport management activities, which 
do not consist of the supply of ground-
handling services but in the offer of 
services to undertakings which them­
selves supply groundhandling services 
to airlines, although falling within the 
transport sector, do not constitute air 
transport services within the meaning 
of Regulation No 3975/87 and there­
fore fall within the scope of Regulation 
No 17. 
(see paras 21-22, 27) 
3. Complaints based on findings of fact 
and on the assessment of those facts in 
the contested judgment are admissible 
on appeal where the appellant contends 
that the Court of First Instance has 
made findings which the documents in 
the file show to be substantially incor­
rect or that it has distorted the evidence 
before it. It follows that a complaint 
alleging misinterpretation of national 
law is admissible where the Court of 
First Instance is alleged to have inter­
preted that law perversely. 
(see paras 56, 63) 
4. In the field of competition law, the 
concept of an undertaking covers any 
entity engaged in an economic activity, 
that is, offering goods and services on a 
given market, regardless of its legal 
status and the way in which it is 
financed. 
That covers a public corporation 
which, in addition to purely adminis­
trative activities, in particular supervis­
ory activities, manages and operates 
airports. The latter activity is an econ­
omic one since it consists of the provi­
sion of airport facilities to airlines and 
the various service providers, in return 
for a fee at a rate freely fixed by the 
manager and they do not fall within the 
exercise of its official powers as a 
public authority and are separable 
from its activities in the exercise of 
such powers. 
(see paras 75-79) 
5. A public corporation which, as the 
owner of airport facilities, is alone able 
to authorise access thereto enjoys a 
dominant position within the meaning 
of Article 86 of the Treaty (now 
Article 82 EC) on the market for 
management services in the airports of 
a given region, which are indispensable 
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SUMMARY — CASE C-82/01 P 
for the supply of groundhandling ser­
vices. In enjoying a legal monopoly to 
manage those airports and therefore 
alone being able to grant authorisation 
to carry out groundhandling activities 
there and to determine the terms on 
which those activities are carried out, 
that corporation wields economic 
power which enables it to prevent 
effective competition from being main­
tained in the market by giving it the 
opportunity to act independently. 
(see paras 91-92, 106-107) 
6. Under subparagraph (c) of the second 
paragraph of Article 86 of the Treaty 
(now subparagraph (c) of the second 
paragraph of Article 82 EC), an under­
taking holding a dominant position on 
the common market or a substantial 
part thereof may not 'apply dissimilar 
conditions to equivalent transactions 
with other trading parties, thereby 
placing them at a competitive dis­
advantage'. 
A public corporation holding a legal 
monopoly of the management of an 
airport which, in the contracts it enters 
into with undertakings offering 
groundhandling services and having, 
in order to do so, to obtain auth­
orisation for access to the airport 
facilities, charges higher fees to under­
takings providing services to third 
parties than to self-handling undertak­
ings, even though they provide the 
same services, infringes that prohib­
ition. That difference, which is not 
objectively justified, constitutes dis­
crimination which enables self-hand­
ling undertakings which also supply 
services to third parties to write off 
their investments and to offer better 
terms to third parties than their com­
petitors and may encourage certain 
airlines to take up self-handling rather 
than employ the services of third 
parties. 
(see paras 114-116) 
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