Judgment;Summary — ECLI:EU:C:2025:124
Date: 2025-02-27
Language of the case: Romanian
Court formation: Ninth Chamber
Subject matter: Competition;Transport
Procedure: Reference for a preliminary ruling
Origin: Romania

Translation C-220/24 – 1 
Case C-220/24 
Request for a preliminary ruling 
Date lodged: 
22 March 2024 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
20 December 2021 
Appellant: 
Regia Autonomă Aeroportul Internațional „Avram Iancu” Cluj 
Respondent: 
Consiliul Concurenței 
Intervener in support of the appellant: 
Sindicatul Independent al Aeroportului Cluj 
Intervener in support of the respondent: 
Romanian Airport Services S.A. 
  
[…] 
CURTEA DE APEL BUCUREȘTI (Court of Appeal, Bucharest, Romania) 
SECȚIA A IX-A CONTENCIOS ADMINISTRATIV ȘI FISCAL (Ninth 
Division for Administrative and Tax Matters) 
ORDER 
Public hearing of 20 December 2021 
[…] 
EN 
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The action has been brought by REGIA AUTONOMĂ AEROPORTUL 
INTERNAȚIONAL „AVRAM IANCU” CLUJ, the appellant, whose 
registered office is in the municipality of Cluj-Napoca […] and which has an 
address for service in the municipality of Bucharest […] at Mușat & Asociații 
S.p.a.r.l., represented by Paul Buta, lawyer, against the CONSILIUL 
CONCURENȚEI (‘Competition Council’, Romania), the respondent, whose 
registered office is in the municipality of Bucharest […] – interveners: 
SOCIETATEA ROMANIAN AIRPORT SERVICES S.A, with an address for 
service in the municipality of Bucharest […] at Furtună și Asociații SPARL, and 
SINDICATUL INDEPENDENT AL AEROPORTULUI CLUJ (‘Independent 
Trade Union of Cluj Airport’, Romania), whose registered office is in the 
municipality of Cluj-Napoca […] – seeking the ‘annulment of the acts regulating 
competition […][, namely] the annulment of Ordinul președintelui Consiliului 
Concurenței (Decree of the President of the Competition Council) No 447 of 
24 June 2016, the annulment of adresa Consiliului Concurenței (Competition 
Council Notice) No RG-4740 of 10 April 2018, and the annulment of Decizia 
Consiliului Concurenței (Competition Council Decision) No 74 of 8 October 
2019’. 
[…] 
CURTEA (Court of Appeal, Bucharest, Romania), 
On the request to make a reference to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 of the Treaty on the 
Functioning of the European Union, and having regard to the 
recommendations of the Court of Justice of the European Union to national 
courts and tribunals, in relation to the initiation of preliminary ruling 
proceedings […], hereby rules as follows: 
I Circumstances of the case 
Regia Autonomă Aeroportul Internațional „Avram Iancu” Cluj (‘Regia’) has been 
a Romanian legal person under the direction of the Consiliul Județean Cluj 
(District Council of Cluj, Romania) (public supervisory authority) since 1997. 
Regia’s main activity is services linked to air transport. In particular, it provides 
airport infrastructure (runways, lighting system, aircraft apron, terminals, and so 
forth) to passenger and/or cargo airlines and to air passengers. The amounts paid 
by the airlines for the use of the infrastructure constitute Regia’s main source of 
revenue. 
Regia also provides access to airport infrastructure to certain undertakings that 
provide other services, such as groundhandling services. 
At the same time, Regia itself provides certain categories of groundhandling 
services for airlines operating in Aeroportul Internațional „Avram Iancu” Cluj 
(Avram Iancu Cluj International Airport), as well as commercial services linked to 
AEROPORTUL INTERNAȚIONAL ‘AVRAM IANCU’ CLUJ 
 
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airport activity (rental of commercial premises for the provision of various 
activities, and so forth). 
Avram Iancu Cluj International Airport falls within the category of Europe’s 
regional airports and is the second largest airport in Romania in terms of 
passenger traffic. 
Scheduled flights to 43 destinations in 20 countries in Europe and the Middle East 
depart from Avram Iancu Cluj International Airport, operated by the airlines 
Tarom, Wizz Air, Lufthansa, Lot Polish Airlines, Blue Air and Turkish Airlines 
(passenger transport), Air Est and Silver Air (freight). 
In August 2016, Avram Iancu Cluj International Airport passed the threshold of 
one million (1 000 000) passengers recorded in a calendar year; by the end 
of 2016, a total of 1 880 319 passenger movements had been recorded. 
Avram Iancu Cluj International Airport recorded two million passengers 
(2 000 000) for the first time on 21 September 2017. In 2017 there were a total 
of 2 688 731 passenger movements at Avram Iancu Cluj International Airport. 
The investigation by the Competition Council was initiated in 2016, following a 
complaint by Romanian Airport Services S.A. against Regia. 
Romanian Airport Services S.A. is a Romanian legal person that has provided 
groundhandling services at Romanian airports since 1994. 
Romanian Airport Services S.A. asked to be allowed to provide groundhandling 
services at Avram Iancu Cluj International Airport. 
Following the investigation that had started in 2016, the Competition Council 
issued Decision No 74 of 8 October 2019, finding that Regia had infringed 
Article 6(1) of Legea concurenței No 21/1996 (Competition Law No 21/1996; ‘the 
Competition Law’) and Article 102 of the Treaty on the Functioning of the 
European Union (‘TFEU’) through abuse of a dominant position in refusing to 
grant Romanian Airport Services S.A. access to the airport infrastructure 
necessary for the provision of groundhandling services at Avram Iancu Cluj 
International Airport between 11 September 2015 and 9 March 2017. 
Pursuant to Article 55(1)(a) of the Competition Law, Decision No 74 
of 8 October 2019 imposed a fine of RON 1 642 551.28 on Regia. 
In the present case, entered in the docket to be heard before the Court of Appeal, 
Bucharest, Ninth Division for Administrative and Tax Matters […], Regia, in its 
capacity as appellant, has sought, in proceedings between it and the Competition 
Council, the respondent, the annulment of Decision No 74 of 8 October 2019 
(‘Decision 74/2019’). 
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In the course of the proceedings, the Independent Trade Union of Cluj Airport, 
Romania, submitted an application for leave to intervene in support of the 
appellant, Regia, while Romanian Airport Services S.A. submitted an application 
to intervene in support of the Competition Council, the respondent. Both 
applications were declared admissible, and therefore the Independent Trade Union 
of Cluj Airport and Romanian Airport Services S.A. became parties to the present 
proceedings as […] interveners. 
In the present case, Regia argued, inter alia, that Decision 74/2019 was adopted 
pursuant to a misinterpretation and misapplication of Directive 96/67/EC on 
access to the groundhandling market at Community airports, which led to an 
erroneous conclusion regarding the application, to the present case, of Article 6 of 
the Competition Law and Article 102 TFEU. 
Regia argued that Directive 96/67/EC was applicable to it. 
Regia claimed that, pursuant to Directive 96/67/EC, it enjoyed the right conferred 
by that directive, until the threshold of two million passengers was reached, to 
organise the groundhandling business at the airport taking into account only its 
own security, technical and commercial constraints and without being required to 
grant automatic access to the airport infrastructure to any applicant, under the 
conditions wished by the latter. 
In that context, Regia pointed out that between 11 September 2015 
and 9 March 2017 it had not reached the threshold of two million passengers. 
Regia considered Directive 96/67/EC to be a more specific law that derogates 
from general competition law. 
Arguing that the legal provisions on competition are general in nature, Regia 
maintained that Article 6 of the Competition Law and Article 102 TFEU cannot 
prevail over the specific provisions contained in Directive 96/67/EC, which are 
specifically aimed at regulating the gradual opening up to competition of the 
groundhandling market at EU airports, while observing rules on efficiency and 
safety. 
The position of the respondent, the Competition Council, as regards the 
applicability of Directive 96/67/EC to the present dispute is set out in 
Decision 74/2019, in paragraph 420 et seq. The Competition Council submits, in 
essence, the following: 
- Regia was not required, under Directive 96/67/EC, not to grant Romanian 
Airport Services S.A. access to the airport infrastructure necessary for the 
provision of groundhandling services; 
- the possible application of the provisions of Directive 96/67/EC does not 
entail the disapplication of competition law provisions; 
AEROPORTUL INTERNAȚIONAL ‘AVRAM IANCU’ CLUJ 
 
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- the meaning that Regia ascribes to the process of liberalising access to 
groundhandling services for third parties is unclear, since the purpose of Regia’s 
interpretation of the provisions of Directive 96/67/EC is to provide a legal 
justification for the following situation: several companies provided 
groundhandling services (self-handling or third-party handling) at Cluj airport, 
but, at the time of the request for access submitted by Romanian Airport Services 
S.A., Regia sought to rely on the provisions of Directive 96/67/EC; 
- the interpretation of EU law as regards the legislation on groundhandling 
services and the relationship between that legislation and competition law must 
emanate from the institution empowered to interpret it, namely the Court of 
Justice of the European Union; 
- the alleged absence of a legal obligation on Regia under the legislation on 
access to the groundhandling market is not an objective reason for refusing to 
grant Romanian Airport Services S.A. access to the airport infrastructure. 
By its action, Regia claimed as follows: 
- it was entitled under Directive 96/67/EC to organise the provision of 
groundhandling services at the airport, including with the assistance of other 
groundhandling operators, even before the threshold of two million passengers 
was reached, in so far as this was necessary and justified from a commercial point 
of view for those other operators as well; 
- the fact that there were several groundhandling operators each providing 
specific services (fuel handling, aircraft repair, catering and a supplier for certain 
passenger and ramp handling services) does not logically justify the conclusion 
that another provider of groundhandling services would automatically have been 
necessary to overlap with them; 
- the Competition Council’s argument (based on the fact that there were 
already several suppliers of groundhandling services at Cluj airport in May 2015) 
is invalid and cannot be taken as a basis for denying the benefit of Regia’s right 
under Directive 96/67/EC, namely that until the threshold of two million 
passengers has been reached, groundhandling at Cluj airport is organised without 
any obligation to open up or liberalise the market. 
At the hearing of 7 June 2021, Regia asked the Court of Appeal, Bucharest, […] 
to formulate and refer, pursuant to Article 267 TFEU, a question for a preliminary 
ruling […] [wording of the question referred for a preliminary ruling reproduced 
in the operative part] 
II The provisions of European Union law to be interpreted 
Article 102 (ex Article 82 TEC) TFEU 
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‘Any abuse by one or more undertakings of a dominant position within the 
internal market or in a substantial part of it shall be prohibited as incompatible 
with the internal market in so far as it may affect trade between Member States. 
Such abuse may, in particular, consist in: 
(a) directly or indirectly imposing unfair purchase or selling prices or other 
unfair trading conditions; 
(b) limiting production, markets or technical development to the prejudice of 
consumers; 
(c) applying dissimilar conditions to equivalent transactions with other trading 
parties, thereby placing them at a competitive disadvantage; 
(d) making the conclusion of contracts subject to acceptance by the other 
parties of supplementary obligations which, by their nature or according to 
commercial usage, have no connection with the subject of such contracts. 
Council Directive 96/67/EC on access to the groundhandling market at 
Community airports 
‘Article 1 
Scope 
1. This Directive applies to any airport located in the territory of a Member 
State, subject to the provisions of the Treaty, and open to commercial traffic in the 
following circumstances: 
(a) The provisions of Article 7(1) relating to categories of ground-handling 
services other than those referred to in Article 7(2) shall apply to any airport 
regardless of its volume of traffic as from 1 January 1998. 
(b) The provisions relating to the categories of groundhandling services 
referred to in Article 7(2) shall apply as from 1 January 1998 to airports whose 
annual traffic is not less than 1 million passenger movements or 25 000 tonnes of 
freight. 
(c) The provisions relating to the categories of groundhandling services 
referred to in Article 6 shall apply as from 1 January 1999 to airports: 
— whose annual traffic is not less than 3 million passenger movements 
or 75 000 tonnes of freight; or 
— whose traffic has been not less than 2 million passenger movements 
or 50 000 tonnes of freight during the six-month period prior to 1 April or 
1 October of the preceding year. 
AEROPORTUL INTERNAȚIONAL ‘AVRAM IANCU’ CLUJ 
 
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2. Without prejudice to paragraph 1, the provisions of this Directive shall 
apply as from 1 January 2001 to any airport located in the territory of a Member 
State, subject to the provisions of the Treaty, and open to commercial traffic, 
whose annual traffic is not less than 2 million passenger movements or 50 000 
tonnes of freight. 
3. Where an airport reaches one of the freight traffic thresholds referred to in 
this Article without reaching the corresponding passenger movement threshold, 
the provisions of this Directive shall not apply to categories of groundhandling 
services reserved exclusively for passengers. 
(…)’. 
‘Article 6 
Groundhandling for third parties 
1. Member States shall take the necessary measures in accordance with the 
arrangements laid down in Article 1 to ensure free access by suppliers of 
groundhandling services to the market for the provision of groundhandling 
services to third parties.  
Member States shall have the right to require that suppliers of groundhandling 
services be established within the Community. 
2. Member States may limit the number of suppliers authorised to provide the 
following categories of groundhandling services: 
— baggage handling, 
— ramp handling, 
— fuel and oil handling, 
— freight and mail handling as regards the physical handling of freight and 
mail, whether incoming, outgoing or being transferred, between the air terminal 
and the aircraft. 
They may not, however, limit this number to fewer than two for each category of 
groundhandling service. 
(…)’. 
‘Article 7 
Self-handling 
1. Member States shall take the necessary measures in accordance with the 
arrangements laid down in Article 1 to ensure the freedom to self-handle. 
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2. However, for the following categories of groundhandling services: 
— baggage handling, 
— ramp handling, 
— fuel and oil handling, 
— freight and mail handling as regards the physical handling of freight and 
mail, whether incoming, outgoing or being transferred, between the air terminal 
and the aircraft, 
Member States may reserve the right to self-handle to no fewer than two airport 
users, provided they are chosen on the basis of relevant, objective, transparent 
and non-discriminatory criteria.’ 
III National law relied on 
Legea concurenței nr. 21/1996, republicată (Competition Law No 21/1996, 
republished) 
‘Article 6 
(1) Abuse by one or more undertakings of a dominant position on the Romanian 
market or in a substantial part of it shall be prohibited. Such abuse may, in 
particular, consist in: 
(a) directly or indirectly imposing unfair purchase or selling prices or other 
unfair trading conditions; 
(b) limiting production, markets or technical development to the prejudice of 
consumers; 
(c) applying dissimilar conditions to equivalent transactions with other trading 
parties, thereby placing them at a competitive disadvantage; 
(d) making the conclusion of contracts subject to acceptance by the other 
parties of supplementary obligations which, by their nature or according to 
commercial usage, have no connection with the subject of such contracts. 
(2) Whenever the Competition Council applies the provisions of paragraph 1, in 
so far as any abuse of a dominant position may affect trade between Member 
States, it shall also apply the provisions of Article 102 of the Treaty on the 
Functioning of the European Union. 
(3) In the absence of proof to the contrary, it shall be presumed that one or 
more undertakings hold a dominant position if their relevant market share during 
the relevant period exceeds 40%.’ 
AEROPORTUL INTERNAȚIONAL ‘AVRAM IANCU’ CLUJ 
 
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Ordinul Ministerului Transporturilor nr. 101 din 9 mai 2007 pentru aprobarea 
Reglementării aeronautice civile române privind accesul pe piața serviciilor de 
handling la sol pe aeroporturi (Decree of the Ministry of Transport No 101 
of 9 May 2007 approving the Romanian Civil Aviation Regulations on access to 
the groundhandling market at airports) – RACR-APSH, edition 03/2007 
‘Article 3 
This Decree transposes the following provisions of Council Directive 96/67/EC on 
access to the groundhandling market at Community airports, published in the 
Official Journal of the European Communities […] No 272/1996, as amended: 
Article 1(1) to (3), Articles 2 to 8, Article 9(1) to (3) and (6), Articles 11, 13, 14, 
15 to 17, 19 to 21 and 23(1)’. 
Annex I to Ordinul Ministerului Transporturilor nr. 101 din 9 mai 2007, [entitled] 
Reglementare aeronautică civilă română privind accesul pe piața serviciilor de 
handling la sol pe aeroporturi – RACR-APSH, ediția 03/2007 (Decree of the 
Ministry of Transport No 101 of 9 May 2007, [entitled] the Romanian Civil 
Aviation Regulations on access to the groundhandling market at airports) RACR-
APSH, edition 03/2007 
‘Article 1 
Aim 
(1) This Regulation applies to any airport located in the territory of Romania 
and open to commercial traffic in the following circumstances: 
(a) the provisions relating to the categories of groundhandling services referred 
to in Article 7(1) other than those referred to in Article 7(2) shall apply to any 
airport regardless of its volume of traffic; 
(b) the provisions relating to the categories of groundhandling services referred 
to in Article 7(2) shall apply to airports recording annual traffic of more than 1 
million passengers or 25 000 tonnes of freight; 
(c) the provisions relating to the categories of groundhandling services referred 
to in Article 6 shall apply to airports whose annual traffic is more than 2 million 
passengers or 50 000 tonnes of freight. 
(2) Where an airport reaches the freight traffic threshold referred to in this 
Article without reaching the corresponding passenger movement threshold, the 
provisions of this Regulation shall not apply the categories of groundhandling 
services reserved exclusively for passengers. 
(3) The Ministry of Transport shall submit to the Commission, before 1 July 
each year, the data required to compile the list of airports in Romania referred to 
in this Article.’ 
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‘Article 6 
Groundhandling for third parties 
(1) Airports shall take the necessary measures to ensure free access by 
suppliers of groundhandling services to the market for the provision of such 
services to third parties. With the approval of the Ministry of Transport, the 
airport may require suppliers of groundhandling services to be established within 
the Community. 
(2) With the approval of the Ministry of Transport, the airport may limit the 
number of suppliers authorised to provide the following categories of 
groundhandling services: 
- baggage handling; 
- ramp handling; 
- fuel and oil handling; 
- freight and mail handling as regards the actual handling of freight and mail, 
whether incoming, outgoing and/or being transferred, between terminals and 
aircraft. 
The number of suppliers may not be limited to fewer than two for each 
groundhandling service. 
(3) In addition, at least one of the approved suppliers may not be directly or 
indirectly controlled by: 
- the managing body of the airport; 
- any airport user who has carried more than 25% of the passengers or 
freight at that airport during the year preceding that in which those suppliers 
were selected; 
- a body controlled directly or indirectly by that airport managing body or by 
that airport user. 
(4) Where pursuant to paragraph 2 the number of authorised suppliers is 
restricted, the airport may not prevent an airport user, to whom any part of the 
airport is allocated, from having, in respect of each category of groundhandling 
service subject to restriction, an effective choice between at least two suppliers of 
groundhandling services, under the conditions laid down in paragraphs 2 and 3’. 
‘Article 7 
Self-handling 
AEROPORTUL INTERNAȚIONAL ‘AVRAM IANCU’ CLUJ 
 
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(1) Airports shall take the necessary measures to ensure the freedom to self-
handle. 
(2) However, for the following categories of groundhandling services: 
- baggage handling; 
- ramp handling; 
- fuel and oil handling; 
- freight and mail handling as regards the actual handling of freight and mail, 
whether incoming, outgoing and/or being transferred, between terminals and 
aircraft, 
airports may, with the approval of the Ministry of Transport, reserve the right to 
self-handle to no fewer than two airport users, provided they are chosen on the 
basis of relevant, objective, transparent and non-discriminatory criteria.’ 
IV Reasons for the national court’s request for a preliminary ruling 
Ruling on the request for a reference for a preliminary ruling to be made, the 
Court of Appeal came to the conclusion that it was necessary, in order for a fair 
resolution of the case, to refer the question referred by the appellant, Regia, to the 
Court of Justice of the European Union for a preliminary ruling […] [text of the 
question for preliminary ruling reproduced in the operative part] 
[…] [text of Article 267 TFEU] 
As regards the question referred, it concerns the interpretation of EU law and has 
a direct link with the subject matter of the main proceedings, it is useful and 
relevant to the outcome of the dispute, for the reasons set out below, and has not 
been interpreted by the Court of Justice of the European Union. 
In the present case, the respondent, the Competition Council, argued that 
Directive 96/67/EC did not constitute a more specific provision of EU law than 
Article 102 TFEU. 
The appellant, Regia, defended itself by arguing that Directive 96/67/EC 
constitutes a lex specialis in EU law and that that directive imposes an obligation 
to open access to the infrastructure necessary for the provision of groundhandling 
activities only for airports whose traffic exceeds two million passengers (and 
necessarily permits, a contrario, airports which have not reached that threshold to 
refuse third parties access to that infrastructure), whereas Article 102 TFEU 
penalises under certain conditions, under the lex generalis, the abuse of a 
dominant position within the internal market or in a substantial part of it (for 
example, by refusing to negotiate). 
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In conclusion, Regia argued that Directive 96/67/EC is a more specific law that 
derogates from the general law (competition law), invoking the principle ‘lex 
specialis derogat legi generali’. 
Regia also argued that, for the activity carried out in Avram Iancu Cluj 
International Airport between 11 September 2015 and 9 March 2017, the 
provisions of Directive 96/67/EC are applicable and take precedence over the 
provisions of Article 102 TFEU, in addition to the fact that Competition Council 
Decision No 74/2019 was adopted in breach of the provisions of 
Directive 96/67/EC. 
In those circumstances, the Court of Appeal, taking the view that a fair resolution 
of the dispute also requires a correct interpretation of the rules of EU law 
applicable in the present case, beyond all reasonable doubt, concluded that it was 
necessary to refer to the Court of Justice of the European Union a question for a 
preliminary ruling on the interpretation of the provisions of Directive 96/67/EC on 
access to the groundhandling market at Community airports, and in particular 
Articles 1, 6 and 7 of that directive, read in conjunction with Article 102 TFEU. 
In the present case, the Court of Appeal considers that the conditions of 
Article 267 TFEU are satisfied […]. [Moreover, the Court of Justice] has not 
adopted a decision clarifying the relationship between the provisions of 
Directive 96/67/EC and the competition law provisions referred to in Article 102 
TFEU. 
V The subject matter of the reference for a preliminary ruling 
Consequently, in the light of all the foregoing considerations, the Court of Appeal 
upholds the request for a reference for a preliminary ruling to be made to the 
Court of Justice of the European Union, sought by the appellant, Regia. 
[…] [wording of the question referred for a preliminary ruling reproduced in the 
operative part] 
[…] [provisions relating to the stay of proceedings] 
ON THOSE GROUNDS, 
IN THE NAME OF THE LAW, 
IT IS ORDERED THAT 
[…] 
Pursuant to [the second paragraph of] Article 267 in conjunction with [the first 
paragraph of] Article 267 of the Treaty on the Functioning of the European Union, 
the Court of Justice is hereby requested to give a preliminary ruling on the 
following question: [‘]Must the provisions of Directive 96/67/EC on access to the 
AEROPORTUL INTERNAȚIONAL ‘AVRAM IANCU’ CLUJ 
 
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groundhandling market at Community airports, in particular Articles 1, 6 and 7 
thereof, be regarded as precluding the application of Article 102 TFEU – and of 
any other rule having the same content – in situations concerning a refusal of 
access to the airport infrastructure necessary for the provision of groundhandling 
services at [EU] airports which have not reached the threshold of two million 
passengers[’]? 
[…] [provisions relating to the stay of proceedings] 
[…] [national procedure] 
[…]