Opinion of the Advocate General — ECLI:EU:C:2005:317
Date: 2005-05-26
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Transport
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 1. Transport – Air transport – Access to the groundhandling market at Community airports – Power of the Member States to ensure an adequate level of social protection for the staff of undertakings providing groundhandling services – Limits – National legislation enabling the managing body of an airport to require a new supplier of groundhandling services to take over workers employed by the previous supplier – Measure liable to jeopardise the opening‑up of the market – Not compatible (Council Directive 96/67, Art. 18) 2. Transport – Air transport – Access to the groundhandling market at Community airports – Charging of a fee for use of airport installations – Conditions – National legislation providing for the possibility for the managing body of an airport to offset by a fee the costs connected with not taking over workers by the new suppliers – Charge not connected with the costs incurred by the managing body in making its installations available – Financial advantage for that body – Not permissible (Council Directive 96/67, Arts 16 and 18) 1. The power to ensure an adequate level of social protection for the staff of undertakings providing groundhandling services, which Member States retain under Directive 96/67 on access to the groundhandling market at Community airports, does not confer an unlimited jurisdiction and must be exercised in a manner that does not prejudice the effectiveness of that directive and the objectives it pursues. National legislation enabling managing bodies of airports in that Member State to exercise a certain amount of pressure on undertakings or self-handling users wishing to enter such a market by providing them with an incentive to take over workers engaged in groundhandling services is liable to make it more burdensome for new suppliers of groundhandling services to enter the sector concerned and to place them at a disadvantage in relation to undertakings which are already established. Such legislation, on account of its financial implications, risks impairing the rational use of airport infrastructures and the reduction of the costs of the services charged to users, thus jeopardising the opening-up of the groundhandling markets and the useful effect of Directive 96/67 and cannot, consequently, be regarded as compatible with the powers conferred on Member States under Article 18 of that directive. (see paras 26-30) 2. A Member State which, in its national legislation, provides that a part of the fee that a managing body of an airport may require from suppliers of groundhandling services and self-handling users for the access to and availability and use of its installations may be intended to offset the costs of not taking over workers when a groundhandling market is opened up fails to fulfil its obligations under Articles 16 and 18 of Directive 96/67 on access to the groundhandling market at Community airports. First, the amount of the fee charged by the managing body of the airport must constitute consideration which corresponds exactly to the use of the airport installations and must be calculated according to the criteria laid down in Article 16(3) of Directive 96/67, taking account of the interest of the body concerned in making a profit. The costs arising from not taking over workers are in no way connected with the costs incurred by that body in making its installations available, and cannot therefore be regarded as being among the criteria referred to in the abovementioned provision. Second, such a charge constitutes a financial advantage for the managing body of the airport and is intended to protect interests which are not among those set out in Article 18 of Directive 96/67. (see paras 32, 36-37, 39, 41)