62001CC0082_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 On 11 June 1998, the Commission adopted its decision 98/513/EC relating to a proceeding under Article 86 of the EC Treaty (IV/35.613 - Alpha Flight Services/Aéroports de Paris) (1) (hereinafter `the contested decision'), which states:
`Article 1
Aéroports de Paris has infringed Article 86 of the EC Treaty by using its dominant position as manager of the Paris airports to impose discriminatory commercial fees in the Paris airports of Orly and Roissy-Charles de Gaulle on suppliers or users engaged in groundhandling or self-handling activities relating to catering (including the loading and unloading of food and beverages on aircraft), to the cleaning of aircraft and to the handling of cargo.
Article 2
Aéroports de Paris shall put an end to the infringement referred to in Article 1 by applying to the suppliers of groundhandling services concerned a non-discriminatory scheme of commercial fees within two months of the date of notification of this decision.'
2 That decision was the subject of an action for annulment before the Court of First Instance of the European Communities brought by Aéroports de Paris (hereinafter `ADP' or `the appellant'). The application in that action having been dismissed, ADP brought the present appeal against the judgment of the Court of First Instance (Third Chamber) of 12 December 2000 in the case of Aéroports de Paris v Commission. (2)
3 The primary remedy sought by the appellant is the setting-aside of that judgment and annulment of the contested decision, together with an order against the Commission for payment of the whole of the costs borne by appellant in the proceedings before the Court of First Instance and in the present appeal. In addition, the appellant asks the Court to order Alpha Flight Services (hereinafter `AFS'), intervener at first instance, to bear its own costs and also, should it submit a statement in intervention in the present appeal, to bear its own costs in that regard and also those incurred by ADP in connection with that intervention.
4 Initially, the Commission raised a preliminary objection to the admissibility of that claim, on the ground that AFS had not yet intervened in the proceedings before the Court. As AFS did intervene following the lodgment of the Commission's defence, that objection was not maintained.
5 However, the Commission has disputed the admissibility of the appeal. It is appropriate to consider its arguments before proceeding to examine the substance of the case.
6 In its appeal, ADP refers on several occasions to supporting documents which are not annexed to it, but which were annexed to its application to the Court of First Instance.
7 According to the Commission, it follows that the appellant has not complied with Article 112 of the Rules of Procedure of the Court of Justice. This states what an appeal is to contain and refers, in particular to Article 37(1), the second subparagraph of which provides that the original of every pleading is to be `accompanied by all annexes referred to therein'.
8 The Commission also relies on Article 37(4) of the Rules of Procedure of the Court, which provides that to every pleading `there shall be annexed a file containing the documents relied on in support of it, together with a schedule listing them'.
9 It is not disputed in the present case that the appellant refers in its appeal to a certain number of supporting documents which are not annexed to it. However, the Commission does not deny that these documents had been annexed to the application to the Court of First Instance and that accordingly it was familiar with them.
10 The Commission nevertheless claims that the lack of any prejudice with respect to its ability to defend itself, a point emphasised by the appellant, does not prevent it from pleading the inadmissibility of the appeal.
11 In that regard, the appellant claims that it follows from the judgment in Tremblay and Others v Commission (3) that for an infringement of Article 112 of the Court's Rules of Procedure to be established there must be prejudice to the party invoking that provision. However, the Commission submits that that case is irrelevant to the present proceedings, because the defects in point there were less serious than in the present case.
12 It states that one of them consisted in a failure in the appeal to designate the other parties to the proceedings, in breach of Article 112(1)(b) of the Court's Rules of Procedure. The other related to the omission of the date on which the judgment appealed against was notified to the parties, as required by Article 112(2). A defect of that kind is not of a serious nature where information regarding the date is easily accessible.
13 According to the Commission, the failure to annex the documents cited in support of the appeal is not comparable to those formalities. Those documents are not the subject of any publicity, unlike the information referred to in Article 112(1)(b) and (2) of the Court's Rules of Procedure.
14 I do not share that view.
15 First, it does not seem to me that the omissions considered in the Tremblay and Others v Commission case are necessarily of such a minor character as the Commission contends. For example, notification of the date of the judgment under appeal enables all the parties concerned quickly to establish whether the appeal was lodged within the prescribed period.
16 Second, it should be noted that in the present case, each of the documents that was not annexed to the appeal was known to the parties to the proceedings, including the interveners, as they were included with the application at first instance. It must also be observed that those documents are not of such importance that their absence would prevent a Member State which had to decide on whether to intervene in the proceedings before the Court pursuant to Article 49(3) of its EC Statute from properly assessing the various aspects of the case. It follows that it would be difficult to maintain in the present case that the failure to annex the documents to the appeal had any practical consequence.
17 I find myself therefore unable to conclude, as does the Commission, that the principle established in Tremblay and Others v Commission, according to which the alleged failures must have caused prejudice to the party founding on them in order for the application to be found inadmissible, does not apply in the present case.
18 On the contrary, I agree with the appellant's submission that that judgment supports the contention that omissions which, as in the present case, do not affect the rights of the parties in any way cannot entail the inadmissibility of the appeal.
19 That is furthermore confirmed, with even greater force, by the judgment in Coopératives agricoles de céréales v Commission and Council, (4) cited by the Commission itself. In that case, the Court found that the absence of certain documents had embarrassed the Commission in the preparation of its defence. Despite this finding, the Court did not hold that the application was inadmissible.
20 It must also be noted that the Commission's contention is unsupported by the provisions of the Court's Rules of Procedure relating to the written procedure.
21 Those provisions do not lay down any sanction for failure to comply with Article 37 of the Rules of Procedure, on which the Commission relies. The Commission does not dispute this, but submits that it follows that the sanction must be the inadmissibility of the appeal as otherwise there could be no be guarantee that that article would be complied with.
22 It would however be inconceivable for such a serious sanction not to have been explicitly prescribed in the Court's Rules of Procedure. This is particularly so inasmuch Article 38(7) of the Rules provides for the possibility of declaring an application formally inadmissible in the event of non-compliance with paragraphs (3) and (6) of that article. There would therefore have been nothing to prevent the inclusion in the Rules of Procedure a similar provision in relation to Article 37.
23 Furthermore, not only is inadmissibility under Article 38(7) of the Rules of Procedure a matter to be decided upon only after the party concerned has failed to put the pleading in order within a reasonable time, but it is also not automatic. That provision states that the Court is to decide `whether the non-compliance with these conditions renders the application formally inadmissible'.
24 It is therefore unlikely that the Court's Rules of Procedure, which provide for the possibility of inadmissibility only as a last resort in respect of matters as serious as, for example, as the absence of proof that a lawyer acting for a party is authorised to practise before a court of a Member State, as required by Article 38(3) are to be construed as meaning that the sanction for non-compliance with Article 37, which is in the same Chapter of the Rules as Article 38, is to be one of automatic inadmissibility, incapable of remedy, and furthermore that that sanction is one that is imposed by implication.
25 Besides its lack of plausibility, such an interpretation would be excessively formalistic and contrary to economy of procedure.
26 The parallel which the Commission seeks to draw with the order made in Lopes v Court of Justice (5) is also unconvincing. The inadmissibility in that case did not result solely from an infringement of Article 37 of the Rules of Procedure, but above all from a failure to comply with Article 17, second paragraph of the EC Statute of the Court of Justice, which requires that a party be represented by a lawyer even where the applicant is himself a lawyer authorised to plead before a national court. It was the refusal of Mr Lopes to use the services of another lawyer which led to the infringement of the Statute and to his application being declared inadmissible. His inability to lodge an originating application signed by his agent was no more than the inevitable consequence, at the formal level, of that refusal, and was not the fundamental reason for his application being declared inadmissible.
27 It follows from the foregoing that the Commission's objection of inadmissibility should be rejected and that the substance of the case should next be considered.
First plea, alleging infringement of Regulation No 17 and Regulation (EEC) No 3975/87.
28 Under this plea, which is directed to paragraphs 34 to 52 of the contested judgment, the appellant alleges that in rejecting its contention that Regulation (EEC) No 3975/87 (6) and not Regulation No 17 (7) is applicable to the present case, the Court of First Instance infringed these regulations.
29 ADP relies on the judgment in Commission v UIC, (8) where the Court held at paragraph 44 that `it was the whole of the transport sector which was removed from the scope of the latter regulation by Regulation No 141, (9) which was subsequently replaced by the three sectoral regulations on land, sea and air transport'.
30 Regulation No 3975/87, which replaced Regulation No 141, should accordingly be construed, according to ADP, as if it applied to the whole of the transport sector. The present case, it maintains, undoubtedly falls within that area.
31 That interpretation of the judgment in Commission v UIC is not, however, convincing.
32 In that regard, it should be noted, first, that paragraph 44 of that judgment was devoted to the Court's examination of the question whether contractual clauses relating to the marketing of transport services by travel agencies whose aim was to favour the supply of rail transport were covered by Regulation No 17 or by a sectoral regulation, namely Regulation (EEC) No 1017/68. (10)
33
In that context, the Court noted that the latter regulation was applicable, as indeed was Regulation No 141, to a certain number of agreements having `as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport, the sharing of transport markets'. It therefore held that the clauses in question were subject to the sectoral regulation and not to the general one.
34 It is therefore clear that the issue raised in that case was that of the detailed rules relating to the marketing of transport services. The question of the link with the provision of those services did not therefore arise in the same terms as in the present case in which, even supposing that the appellant's contention that its activities fall within the transport sector were upheld, it could not be considered to a relate to the detailed rules concerning the marketing of air transport services.
35 Second, it should be noted that at paragraph 29 of the same judgment the Court observed that `the Court of First Instance rightly held that the dispute concerned the interpretation of Regulation No 1017/68 and not of Regulation No 141'. It is accordingly doubtful that the Court intended in its judgment to take a position on the interpretation of Regulation No 141.
36 Furthermore, the appellant's contention amounts to saying that the Court had construed the last-mentioned regulation in such a way as to attribute a wide scope to it.
37 The idea that the Court intended to give such an interpretation is all the more far-fetched in that the provisions of that regulation unquestionably confirm its character as a lex specialis in relation to Regulation No 17.
38 Thus, the third recital in the preamble of Regulation No 141, states, as the Court of First Instance noted, that `the distinctive features of transport make it justifiable to exempt from the application of Regulation No 17 only agreements, decisions and concerted practices directly relating to the provision of transport services'. (11) That view finds confirmation in Article 1 of Regulation No 141, which limits the exemption from the application of Regulation No 17 exclusively to agreements which have `as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport or the sharing of transport markets'.
39 The Court of First Instance was therefore correct to reject the appellant's arguments based upon the judgment in Commission v UIC.
40 ADP further claims under this plea that the Court of First Instance made an error of law in its analysis of Regulation No 3975/87 itself.
41 ADP criticises it for attaching importance to the title of that regulation, which refers to `the procedure for the application of rules on competition to "entreprises de transports aériens"'.
ADP submits that nothing turns on that wording and notes that the English version of the regulation refers to `undertakings in the air transport sector', which shows much more clearly that the regulation applies to all undertakings in the air transport sector and not simply to transport undertakings in the narrow sense.
42 The Commission however rightly points out that in cases of divergence between the language versions of a regulation, the Court's case-law shows that the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (12) This is precisely what the Court of First Instance did, in analysing, in particular, Article 1 of Regulation No 3975/87 and 4a thereof, inserted by Council Regulation (EEC) No 1284/91. (13)
43 In that regard, ADP complains that the Court of First Instance inferred from Article 1(2) of Regulation No 3975/87, which provides that `This Regulation shall apply only to international air transport between Community airports', that the regulation only applied to air transport services in the strict sense.
44 According to the appellant, the word `only' relates solely to the expression `between Community airports' and is intended to exclude transport involving non-Community airports.
45 It must however be noted that this provision is to be read in the context of Article 1(1) of Regulation No 3975/87, which it supplements. That provision states that `This Regulation lays down detailed rules for the application of Articles 85 and 86 of the Treaty to air transport services'. It unquestionably follows, as the Court of First Instance held, that the regulation applies only to activities relating to the provision of those services and not those of entities which, like the appellant, supply their services to undertakings which themselves offer groundhandling services to providers of air transport services.
46 Contrary to what the appellant claims, that conclusion is not weakened, but rather is strengthened, by Article 4a of that regulation, to which the Court of First Instance also refers. This provision applies only to practices capable of `directly jeopardising the existence of an air service'.
47 The appellant claims in this regard that that provision supplies an argument in favour of the application of Regulation No 3975/87 to the whole of the air transport sector. It is clear that such practices could be engaged in by undertakings in the transport sector other than the carriers themselves.
48 It none the less remains the case that the practices in question must display a link with the very existence of an air transport service that is sufficiently close to be capable of jeopardising it directly. However, it is not claimed that this is so in the case of the activities in question in the present case, namely, let me repeat, arrangements for access for the providers of groundhandling services to the airport infrastructure.
49 The example given in this context by the appellant is, moreover, particularly revealing, because it refers to a situation where an airport denies use of its facilities to an airline. The present case is, specifically, not concerned with relations between airlines and airport managers. The alleged abuse involves relations between the latter and the providers of groundhandling services, who in turn supply the airlines.
50 Finally, the appellant is also incorrect in regarding as wholly irrelevant the reference by the Court of First Instance to the first recital in the preamble to Regulation (EEC) No 3976/87, (14) which states that Regulation No 17 is applicable to agreements `other than those directly relating to the provision of air transport services'.
51 ADP submits that it is another regulation, namely Regulation No 3975/87, which is at issue in the present case. In particular, and above all, Regulation No 3976/87 applies only to agreements whereas in the present case it is an abuse of a dominant position that is alleged.
52 The fact remains that, as the Commission points out, the two regulations were adopted concomitantly and have the same subject-matter, namely the application of the rules on competition to air transport services.
53 Furthermore, it is impossible to see why the area of application ratione materiae of Regulation No 17 should differ, in the present case, according to whether an agreement or an abuse of dominant position is concerned.
54 The Court of First Instance was therefore entitled to find that this was a further reason for holding that Regulation No 17 is applicable to all types of conduct other than that which relates directly to the provision of air transport services.
55 It follows from this conclusion that, contrary to what the appellant contends, the concept of `transport services' is not to be construed as covering all kinds of activity connected with the air transport sector, with the result that they are excluded from the application of Regulation No 17.
56 The Court of First Instance was therefore right in holding that the activities of the appellant did not constitute transport services within the meaning of Regulation No 3975/87, as ADP is not a provider of air transport services and so is not an air transport undertaking.
57 Although ADP places great emphasis on the fact that its activities undoubtedly fall within the air transport sector, this does not mean that they comprise `air transport services' for the purposes of Regulation No 3975/87, given the interpretation of the regulation adopted, rightly in my view, by the Court of First Instance.
58 Equally fruitless is the applicant's attempt to find support for its case in Directive 96/67/EC, (15) arguing, first, that the Commission had stated in its proposal that groundhandling services formed an integral part of the air transport system and, second, that the Committee of the Regions had noted in its opinion that `airports and groundhandling services are an integral part of the air transport market'. The fact is that, as the Commission's position was not adopted by the Council, the Court of First Instance was entitled to treat this choice as providing further evidence of the distinction to be made between groundhandling services and air transport services and of the impossibility of assimilating the one to the other.
59 Furthermore and in any event, it is not disputed that the appellant does not provide groundhandling services, as indeed the Court of First Instance properly pointed out.
60 Lastly, I would emphasise that, contrary to what the appellant suggests, there is no contradiction between the finding of the Court of First Instance, at paragraph 49 of the contested judgment, that the practices of ADP which are objected to had only an indirect repercussion on the market in air transport, and the Commission's statement in paragraph 125 of the grounds of the contested decision that the relevant fees produce `anti-competitive effects on the market for air transport services'.
61 A reading of these two texts shows that the Court of First Instance and the Commission are making the same point, namely that carriers are not concerned directly with the amount of the fees, but only to the extent that these affect the costs incurred by their provider of groundhandling services, and therefore the prices offered by the latter to the carrier.
62 It follows from the foregoing that this plea should be rejected.
Second plea, alleging breach of the obligation to state reasons
63 ADP submits that the Court of First Instance has contravened its obligation to state reasons in that its reasoning is contradictory. On the one hand, it found that the Commission's decision did not require identical fees to be charged for self-handling and handling for third parties. On the other hand, it stated that ADP provided the same services in each case, which, according to ADP, of necessity excludes the possibility of different treatment.
64 The Commission disputes the admissibility of this plea on the ground that it is a mere repetition of the second and third pleas raised before the Court of First Instance. In light of this and having regard to the case-law of the Court of Justice, (16) this plea must be held to be inadmissible.
65 The appellant does not agree with that interpretation of the case-law. It argues that only a verbatim reproduction of a plea would lead to its being inadmissible.
66 It is not necessary to form a view on this point, as the Commission's submission cannot in any event be accepted in the present case.
67 It follows from settled case-law, including the order made in Kupka-Floridi v Economic and Social Committee, that an appeal `must clearly state which aspects are criticised in the judgment which the Court is requested to set aside and the legal arguments which specifically support the request'. (17)
68 That is the situation in the present case. The appellant lists clearly the paragraphs which it seeks in particular to criticise, namely paragraphs 62, 66 and 67 first of all, and secondly paragraph 206. The specific arguments raised against those paragraphs are likewise set out, and the appellant explains that the paragraphs disclose, in its submission, a contradiction in the reasoning of the Court of First Instance.
69 I am accordingly of the view that this plea is admissible.
70 As regards the substance of the plan, it must be concluded that the appellant is wrong to suggest that there is a contradiction in the reasoning of the Court of First Instance.
71 Merely stating that the fees must be fixed in a non-discriminatory manner does not in any way imply that the fees must be identical for all. Non-discrimination requires only that any differences that may exist between the fees be objectively justified.
72 The Court of First Instance accepted the Commission's argument that the fees required to be fixed in a non-discriminatory manner. It found that differences existed. It accordingly, and very logically, went on to consider whether any justification had been put forward to negate the charge of discrimination.
73 In that context, it found that there was no such justification, having regard in particular to the fact that the services offered in both categories were the same. Naturally, the fact that the differences were not justified in the present case does not in any way imply that they could not be justified in another, and that fees require to be identical in all cases. It should be borne in mind in this regard that it follows from the very concept of non-discrimination not only that identical situations must be treated in the same way, but also that, in their turn, different situations must not be treated in the same way, assuming obviously that objectively relevant differences are involved.
74 It follows that the reasoning of the Court of First Instance on this point represents the application purely and simply of the principle of non-discrimination and is not contradictory in the manner alleged by the appellant.
75 This plea should accordingly be rejected.
Third plea, alleging breach of the rights of defence
76 Before the Court of First Instance, ADP challenged the classification of its services as a `business activity' for the purposes of the Treaty, using as an example a provider of groundhandling services, HRS, which, according to ADP, carries on its activity from outside the airport precincts without paying any fee to ADP.
77 The appellant criticises the Court of First Instance for having stated at paragraph 126 of the contested judgment that `[the] activity [of HRS] should therefore also be subject to a commercial fee and the fact that it does not pay such a fee is merely a further instance of discrimination ... although not expressly raised in the contested decision ...'.
78 According to ADP, the Court of First Instance is thereby finding it guilty of an infringement of competition law, outside and in breach of all the procedural rules laid down by Community law for reaching a finding of infringement. It states that it was never in a position to defend itself, before the delivery of the contested judgment, against such a complaint, which appeared neither in the statement of objections nor in the decision.
79 It must however be observed that a reading of the whole text of paragraph 126 shows, as the Commission points out, that the finding of the Court of First Instance in this regard is made purely for the sake of completeness.
80 At paragraphs 120 and 125 of the contested judgment, the Court of First Instance demonstrated the economic character of the activities of ADP. Paragraph 126 only exists to add that that finding is not affected by the situation relating to HRS, a matter the appellant had raised.
81 The Court of First Instance took the view, which has not been challenged by ADP, that HRS has to use the airport facilities since, by definition, groundhandling services are provided within the airport. It deduced logically from that that HRS should also pay a commercial fee and that the example of its situation could not affect the conclusions reached by the Court of First Instance elsewhere in relation to the nature of the commercial fee at issue or the services for which it constituted remuneration.
82 The essential feature of paragraph 126 of the contested judgment is therefore the conclusion of the Court of First Instance that the example given by the appellant did not call into question its reasoning in relation to the activities of ADP. The fact that this example also discloses discrimination not alleged by the Commission is merely an incidental finding made by the Court of First Instance
83 Furthermore, and in any case, I would add that there is no basis for this plea. It is not for the Court of First Instance to make findings proprio motu as to the existence of infringements. That is the responsibility of the Commission, which it exercises in the framework of a procedure guaranteeing respect of the rights of defence.
84 It follows that a finding of the Court of First Instance, such as the one criticised by the appellant, can in no circumstances be regarded as establishing the existence of an infringement of competition law, even if it may give the impression of doing so. Accordingly, and contrary to what ADP argues, it cannot result in legal proceedings being brought against the latter to establish its liability, nor indeed can it give rise to any sanction in relation to ADP (not that any sanction is suggested in the present case).
85 It follows from the foregoing that the complaint of breach of the rights of defence made against the Court of First Instance cannot be upheld and that this plea should be rejected.
Fourth plea, alleging failure to respond to a plea put forward by ADP
86 The appellant states that the contested decision asserts that the different treatment by ADP of handling for third parties and self-handling produces discriminatory effects in the air transport market and that the appellant raised before the Court of First Instance a plea in law challenging that assertion by showing the difference between a self-handling carrier and one who makes use of the services of a third-party provider.
87 It states that the Court of First Instance did not address that plea. It limited itself to considering the respective positions of a self-handling carrier and a provider to third parties, and not the situation which the appellant claims it should have considered, namely discrimination between carriers. This is the object of the contested decision and is what ADP has disputed.
88 These arguments should not be accepted.
89 It should be noted that, as the Commission points out and contrary to what ADP claims, the contested decision is not directed to discrimination between air carriers. Article 1 of the decision leaves no room for doubt in this regard, as it explicitly states that `ADP has infringed Article 86 of the Treaty by using its dominant position to impose discretionary commercial fees in the Paris airports ... on suppliers or users engaged in groundhandling or self-handling activities relating to catering, to the cleaning of aircraft and to the handling of cargo'.
90 The appellant relies on the final sentence of paragraph 123 of grounds of the contested decision, which states that airlines not carrying out self-handling `are therefore compelled to use more expensive third-party groundhandlers and thus suffer the discriminatory effect of the commercial fees charged by ADP'.
91 While it is true that this wording is not wholly free from ambiguity, it none the less remains the case that it is sufficient to return it to its context, as the remainder of the contested decision clearly shows, to understand that the decision is directed to discrimination `between suppliers or users engaged in the same groundhandling activity'. (18)
This is confirmed in particular by the detailed comparison of the levels of fees to which the Commission then turns. (19)
92 The sentence referred to by the appellant must therefore be understood as describing, incidentally, the consequences of the discriminatory fees for air carriers who, as customers or, as a result of self-handling, as operators in the market of groundhandling services, are liable to be affected by discrimination towards the providers of groundhandling services.
93 It follows, as the Commission notes, that the premiss on which this plea is founded is incorrect and that it must therefore be rejected.
94 It should be observed, as a secondary point, that the appellant's submission that the Court of First Instance did not answer the point is on any analysis erroneous. It is necessary only to refer to paragraph 218 of the contested judgment, which states:
`Last, the appellant's argument that there is no discrimination on the market in air transport itself, since there is no restriction on self-handling in the Paris airports must also be rejected. First, that argument, even supposing it to be well founded, does not call in question the existence of the discrimination between those providing groundhandling services for third parties and those providing their own groundhandling services. Second, it is inaccurate, since, as pointed out in recital 123 to the contested decision, only the large airlines with a large volume of traffic in the Paris airports are in practice able to develop and operate profitably a self-handling service, while the others are obliged to use third-party groundhandlers.'
95 It follows from the foregoing that this plea should be rejected.
Fifth plea, alleging distortion of the clear sense of the evidence
96 Under this plea, the appellant claims that the Court of First Instance distorted the clear sense of the evidence adduced before it, in the form of the agreements between ADP and the providers of groundhandling services, AFS and OAT, when it found that the fee in question was due in exchange for the services which ADP provides as manager and for the provision of facilities shared by users and suppliers of groundhandling services operating at the airport.
97 According to the appellant, a reading of the agreements different from that adopted by the Court of First Instance is clearly called for. Those agreements do not relate to `management services' and provide only for a single overall fee in consideration for the private occupation of publicly-owned property. The fact that the terms `management services' does not actually appear in the agreements is sufficient to demonstrate the distortion of the clear sense of those agreements by the Court of First Instance. Furthermore, the Court of First Instance should have taken account of `French law applicable to property owned by the State', given that those agreements were entered into under the regime applying to `licences to occupy publicly-owned property'.
98 The first point to be noted here is that this plea is closely linked to the two pleas which follow it. These three pleas have more or less the same object, namely the determination made by the Court of First Instance that ADP's activities were economic in nature and the application of the concept of a business or undertaking to it. Having regard however to the variety of arguments raised in support of these pleas, I take the view that it is appropriate to consider them separately.
99 The Commission submits that this plea is inadmissible, as it replicates the first part of the fourth plea argued before the Court of First Instance, as set out in paragraphs 94 to 105 of the judgment.
100 It must however be observed that although a reading of the appellant's pleadings shows an undoubted similarity between the two pleas referred to by the Commission, it none the less remains the case that the plea raised in the appeal cannot be seen as a mere duplication of the plea submitted at first instance.
101 Not only does the appellant clearly specify the paragraphs of the judgment which it subjects to reasoned criticism, but it also raises arguments that could not have been put previously, namely its criticism of the Court of First Instance's analysis of the agreements between ADP and the providers of groundhandling services.
102 The Commission goes on to assert that the plea in question should be held to be inadmissible on the ground that it constitutes a plea going to the facts, and is accordingly not a matter for examination by the Court on appeal.
103 The appellant challenges that assertion and claims that its plea relates to the distortion of the clear sense of the evidence and is accordingly admissible under this Court's case-law. (20)
104 In any event, the question whether this plea should be understood as referring to a substantial misrepresentation of the facts or to a distortion of the clear sense of the evidence is irrelevant. It is clear from the case-law that both the assessment of the evidence and the findings of fact by the Court of First Instance are not amenable to review by the Court of Justice on appeal, save where there has been such misrepresentation or distortion. (21)
105 It is necessary therefore to consider whether in the analysis by the Court of First Instance of the content of the agreements in question, there was such a distortion, in that it found that the fees in issue were due in exchange for management services provided by ADP and the provision of facilities shared by users and the providers of groundhandling services in the airport.
106 In that regard, it should be emphasised that ADP's contention that the agreements provide only for a single overall fee in exchange for a right of private occupation of publicly-owned property, is wholly unsupported by a consideration of the wording of the agreements.
107 Thus, to take as an example the agreement between ADP and AFS, (22) the fact that the expression `management services' does not appear in it is of no significance, as the very purpose of the agreement is to licence AFS to occupy a series of properties intended for use for the operation of a catering service (23) and to erect and fit out a building necessary for that use (24) (clause 17 of the agreement). It is difficult to see how ADP would be able to offer the occupants of its properties the opportunity effectively to undertake these operations without at the same time allowing AFS to take advantage of ADP's management of all the facilities available at the airport. These would include, for example, permanent checking of the accreditation of authorised persons and the putting into place and implementation of all measures necessary to allow for the performance, in wholly secure conditions, by approved service providers of their activities.
108 Similarly, the reference to the `rules applying to licences for temporary occupation of publicly-owned property' in no way detracts from the fact that the agreement is called an `agreement setting out the conditions for temporary occupation of publicly-owned property for the carrying out of a commercial activity' (25)
and that it is divided into two parts, namely a set of recitals and `general conditions relating to the right to occupy and to use'. (26)
109 As regards clause 23 of the agreement between ADP and AFS, which sets out the financial terms, this expressly states that the fee is payable `in consideration of the right to occupy and use granted by Aéroports de Paris to the operator'.
110 Unless the references to `use or operation' are to be deprived of any meaning, it must be concluded that the fee is not payable only in exchange for a right of private occupation of publicly-owned property.
111 This is all the more the case since the agreements in question themselves distinguish between a `State fee' and a `commercial fee'. Furthermore, the agreement entered into with AFS expressly provides at clause 23.1 `State fee: No State fee is payable'. It therefore appears difficult to maintain, as the appellant does, that the sole subject of the agreement was the private occupation of publicly-owned property.
112 This is also confirmed by the method of calculation of the commercial fee. It is to be calculated as a proportion of the turnover achieved by the provider of groundhandling services. That figure is subject to variation as a result of a number of factors unrelated to the occupation of publicly-owned property.
113 The commercial fee accordingly does not have the usual characteristics of a commercial rent which is paid as consideration for the private occupation of premises where a business of a service provider is carried on and which is calculated by reference to the area occupied.
114 Therefore, in approving the distinction made by the Commission between the State fee, payable in exchange for a licence to occupy, and the commercial fee, payable in exchange for the permission to use or operate, the Court of First Instance, far from having distorted the clear sense of the facts and evidence, has in my opinion made a perfectly correct assessment of them.
115 It follows that this plea should be rejected.
116 I should add, as a secondary point, that even assuming it to be well founded, this plea would not be determinative. Even if the fee was only payable in respect of the occupation of publicly-owned property, that would not affect the economic nature of the transaction between ADP and the providers of groundhandling services, and accordingly the applicability of Community competition law in the circumstances.
117 I shall return to this point in my examination of the appellant's other pleas, but the making available of land and infrastructure for the purposes of a commercial activity, in return for payment calculated by reference to the turnover of that activity, constitutes an economic activity even where the assets in question are publicly-owned property and their manager is a financially autonomous public undertaking.
118 It follows from the foregoing that this plea should be rejected.
Sixth plea, alleging perverse interpretation of national law
119 The appellant claims that the Court of First Instance clearly interpreted national law perversely in holding that `the activities in question carried out by ADP are economic activities, and although those activities are carried out on publicly-owned property, they do not for that reason form part of the performance of task conferred by public law'.
120 This quotation is taken from paragraph 125 of the contested judgment, where the Court of First Instance concludes an analysis which starts at paragraph 119. This states that the Court of First Instance will now consider `whether those services constitute a business activity for the purposes of Article 86 of the Treaty'.
121 It is therefore clear that the statement which the appellant criticises is not the result of an analysis by the Court of First Instance of French law, an analysis which ADP claims is erroneous, but flows in reality from the application of Community law by the Court of First Instance.
122 The particulars provided by the appellant show however that its plea is in reality directed against paragraph 129 of the contested judgment, which reads as follows:
`For the sake of completeness, it should be pointed out, in that regard, that according to the French Competition Council, ADP may be regarded as an undertaking subject to the competition rules laid down in French law and the provision of airport premises constitutes an economic activity (decision 98-D-34 of 2 June 1998, cited above). Moreover, it is clear from the judgment of the Tribunal des Conflits of 18 October 1999, cited above, that the decision of the Competition Council of 2 June 1998 was only partially annulled. The Tribunal des Conflits held that "the decisions to locate the activities of the Air France group at Orly-Ouest air terminal and to refuse to allow TAT European Airlines to open new routes from that air terminal, which relate to the management of publicly-owned property, constitute the use of powers conferred by public law". By contrast, the Tribunal des Conflits confirmed that "the practices on the part of ADP which may constitute abuse of a dominant position by requiring TAT European Airlines to use [ADP's] groundhandling services instead of its staff, can be severed from the assessment of the lawfulness of an administrative measure".'
123 The appellant argues forcefully that this analysis is not a correct application, but a perverse interpretation, of the national case-law in question.
124 It must be emphasised at once that, as the Commission rightly points out, the above reasoning of the Court of First Instance was included only for the sake of completeness, as the judgment expressly makes clear.
125 The Court has consistently held that a plea will be rejected outright where it is directed against reasons given for the sake of completeness. (27)
126 The appellant contends nevertheless that the Court of First Instance was wrong to categorise its reasoning as being for the sake of completeness. According to it, it is on this appraisal of French law that turns the question whether the administration of publicly-owned property constitutes the exercise of official powers. This is a question of fundamental principle for the application of Community law in the present case.
127 I do not share that view.
128 What the appellant in fact is challenging is the applicability of Community competition law to its activities. The answer to this question depends on how those activities are categorised under that law. It is the task of the Court of First Instance to make this categorisation, subject to review by the Court of Justice, by examining the specific characteristics of the activities in question in light of the criteria deriving from the Treaty and the case-law.
129 By contrast, the Court of First Instance does not have to have recourse to categories under national law in determining the nature of the activities of ADP for the purposes of Community competition law.
130 It follows that the reasoning of the Court of First Instance was indeed given for the sake of completeness when, at paragraph 129 of the contested judgment, it explained why it did not agree with the appellant's analysis of the case-law relating to the question whether under French law ADP's activities represent the exercise of official powers.
131 As regards the question whether the analysis of Court of First Instance in relation to the criteria for the application of Community competition law is correct, this is the subject of the following pleas put forward by ADP.
132 It follows from the foregoing that this plea should be rejected as being irrelevant.
Seventh plea, relating to the concept of undertaking for the purposes of Article 86 of the EC Treaty
133 The appellant submits that the Court of First Instance infringed Article 86 of the EC Treaty (now Article 82 EC) in holding that the appellant is an undertaking for the purposes of this provision. It points out that the only activity in question in the present case is the administration of publicly-owned property. For that purpose, ADP possesses official powers. This of necessity prevents it from being held to be an undertaking for the purposes of Community competition law.
134 The Commission raises as a preliminary point an objection of inadmissibility based on the similarity between this plea and the first part of the fourth plea raised by the appellant before the Court of First Instance and described to at paragraphs 94 to 105 of the contested judgment.
135 Here again, the similarity between the two cannot be denied, and I could understand it were the Court to hold that ADP has simply repeated the arguments put forward at first instance. However, as the appellant indicates in a sufficiently clear manner the paragraphs of the judgment it criticises, and presents a reasoned argument against them, I am nevertheless of the view that the Commission's objection should be rejected.
136 In any event, I entirely agree with the Commission's analysis of the substance of this plea.
137 Like the defendant, I consider that it rests on a false premisses. The mere fact that ADP also exercises official powers is not of itself sufficient to exclude its being categorised as an undertaking for the purposes of Article 86 of the Treaty.
138 It should in this context be noted, as did the Commission at point 49 of the grounds of the contested decision, that it has consistently been held that in the field of competition law the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed. (28)
139 It follows that the mere fact that the appellant has available to it official powers for the purpose of the exercise of part of its functions is not sufficient to prevent its activities from being economic in nature.
140 In the present case, the Court of First Instance has shown beyond doubt that there is a distinction, within the activities of the appellant, to be made between those which relate to the exercise of official powers and the remainder of those activities. (29)
141 It rightly held that the activities carried on by ADP that are relevant to the present case comprise the provision of airport facilities to airlines and various service providers, in return for a fee at a rate freely fixed by ADP. ADP therefore offers to economic operators, in exchange for payment, a service in the form of access to infrastructure. It is settled case-law that any activity consisting in offering goods and services on a given market is an economic activity. (30)
142 That activity is separate from ADP's activities of a purely administrative nature and in particular its policing tasks. On the contrary, it is perfectly possible to distinguish the economic, or commercial, aspect of the administration by ADP of its property from its administrative aspect.
143 Nor does the appellant itself put forward anything specific to show that its relations with the providers of groundhandling services, as they appear from the agreements in question, are determined by the exercise of its official powers.
144 It restricts itself to pointing out that these agreements are governed by the law applicable to property owned by the State, without putting forward anything of a specific nature that might suggest that the activity in question does not have an economic character.
145 The appellant therefore fails completely to show in what way the Court of First Instance was wrong to hold that this was not a case where, in accordance with the Court's case-law, a public-law entity or an entity entrusted with the provision of a public service and acting in its capacity as a public authority should be considered not to be an undertaking for the purposes of Article 86 of the Treaty.
146 The case-law cited by the appellant in support of its contention (31) in this regard is of no assistance to it. As the Commission rightly points out, in the SAT Fluggesellschaft case it was precisely the impossibility of separating the activities involving the collection of route charges and those involving control over and policing of airspace carried out by the public entity, coupled with its lack of power to take its own decisions, that made it impossible to treat it as being an undertaking for the purposes of Article 86 of the Treaty.
147 As far as Bodson is concerned, the Court of Justice did not make any finding there that official powers existed which precluded application of Article 86 of the Treaty.
148 Similarly, the criticism levelled against the observation by the Court of First Instance that `the facilities within the Paris airports are essential, since their use is indispensable to the provision of various services, in particular groundhandling' (32) has no relevance. That observation is not intended to support its reasoning in relation to the absence any impact of the official powers vested in the appellant, which is the subject of this plea.
149 Furthermore, in making that statement, the Court of First Instance limited itself to observing that in order for groundhandling services to be provided in Paris it is essential to use the facilities of the Paris airports, and that this is so notwithstanding the possibility of using land or buildings privately. I find it very hard to see how that this view can be disputed.
150 What is in issue is therefore a purely factual observation whose validity is in no way called into question by the appellant's criticisms, according to which it is not necessary to be the beneficiary of an agreement for the private occupation of publicly-owned property in order to provide groundhandling services at the Paris airports.
151 The appellant's assertion relating to the lack of any need to be the beneficiary of an agreement of that kind raise a different question, namely that of the legal conditions governing access to the abovementioned essential facilities.
152 The example of HRS, cited by the appellant, illustrates this distinction. The fact that HRS does not, according to the appellant, benefit from an `agreement for private occupation of publicly-owned property' does not mean that it does not in practice require to have access to the airport facilities in order to carry on its activity. It is only able to do this by virtue of an agreement with ADP allowing it to offer its groundhandling services in the airport facilities managed by the latter.
153 As regards the appellant's argument that the case-law cited by the Court of First Instance (33) is irrelevant because it does not concern the administration of publicly-owned property, it should be emphasised that these judgments concerned the making available of infrastructures by entities responsible for their management, as in the present case. The Court of First Instance was therefore right to refer to them.
154 Lastly, ADP argues that the observation made by the Court of First Instance that the activity in question is capable of being exercised by private undertakings `has no bearing on the issue'. It must however be observed that it is settled case-law that this is a relevant criterion for determining whether an activity is, or is not, an activity carried on by an undertaking within the meaning of Article 86 of the Treaty. (34)
Eighth plea, relating to definition of the market
155 The appellant submits that the Court of First Instance infringed Article 86 of the Treaty in erroneously defining the market in question.
156 ADP states in that regard that the fees at issue were levied in return for the private occupation of publicly-owned property and that this is not necessary in order to provide groundhandling services. It submits that this is proved, moveover, by the example of HRS which, according to ADP, carried on the activity of a provider of those services without being a private occupier of publicly-owned property and was, as a result, the holder of an access permit which did not give rise to the payment of a fee.
157 It follows that the Court of First Instance was not entitled to find that the relevant market was `in management services at the Paris airports' covering `the conditions of access to airport installations'.
158 Furthermore, its reference to the judgment in British Leyland v Commission, (35) concerning a situation where it was essential to hold a certificate of conformity issued by the manufacturer in order for an imported vehicle to be registered, is irrelevant because, in the present case, it was, precisely, not necessary to occupy publicly-owned property, and accordingly to pay a fee, in order to provide groundhandling services.
159 The Commission disputes the admissibility of the plea, on the ground that it is no more than a duplication of the second part of the fourth plea in the application submitted at first instance, covered by paragraphs 131 to 136 of the contested judgment.
160 As regards the challenge by the appellant to the definition of the product market adopted by the Court of First Instance, it must be observed that the appeal includes points which specifically address the reasoning of the Court of First Instance and which accordingly do not appear in the application submitted at first instance. In particular, the appellant disputes the relevance of this Court's decision in British Leyland v Commission, cited by the Court of First Instance, and argues that the latter cannot use against it the new arrangements introduced, after the statement of objections, in connection with the measures taken for the implementation of the directive on groundhandling services, and mentioned at paragraph 127 of the contested judgment.
161 The plea must therefore be held to be admissible, to the extent that it relates to the definition of the product market.
162 In contrast, as regards the determination of the geographical market, which is also the subject of this plea, it should be noted that the appellant merely repeats its assertion, recorded in paragraph 141 of the contested judgment, that all the land and buildings available in the Paris area of a similar type to the publicly-owned property held by ADP and on or in which a service provider could carry on its activities should have been included.
163 It is also interesting that nowhere in its reply does the appellant provide any argument in support of the admissibility of this aspect of the plea.
164 It follows, by application of the decision in Kupka Floridi v CES cited above, that the plea should be held to be inadmissible to the extent that it relates to the definition adopted by the Court of First Instance of the geographical market in question.
165 It has already been shown that the Court of First Instance did not substantially misrepresent the facts or distort the clear sense of the evidence in holding that the fees in dispute were not payable in exchange only for the private occupation of publicly-owned property.
166 It would repeat, in this regard, that what is in issue in the present case is access to airport facilities, without which a provider of groundhandling services cannot, by definition, carry on his activity. That access is available on terms dictated by ADP in its capacity as manager of the airports. That finding was made by the Court of First Instance and is expressly referred to by the appellant in its appeal, where it states that at the relevant time there existed `an authorisation issued by ADP for access to the restricted zone of the airport precincts'.
167 In this context, the providers of groundhandling services represent the demand side of a service with which only ADP is able to provide them, namely access to its facilities, subject to conditions which it specifies as part of its management of those facilities.
168 The fact that the authorisation can likewise be obtained by operators such as HRS, who do not occupy publicly-owned property in a private capacity, does not detract from the fact that the authorisation is necessary in order to gain access to the airport facilities where, by definition, groundhandling services are provided. Operators such as HRS therefore also form part of the demand side of the market in the service offered by ADP.
169 Nor does the fact that the operators who are not private occupiers of publicly-owned property benefited from access to the airport facilities for no fee affect the definition of the relevant market. Those operators were required to obtain that authorisation, and thus services of ADP. The fact that the latter charged them no fee at the time, unlike their competitors within the airport precincts, does not therefore affect the definition of the relevant market.
170 The criticism made by the appellant of the definition of the market given by the Court of First Instance cannot, therefore, be upheld. Furthermore, it follows from the foregoing that the Court of First Instance was wholly justified in stressing the parallel between the present case and the British Leyland judgment, cited above. At paragraph 138 of the contested judgment the Court of First Instance clearly explained that the British Leyland case put in issue the monopoly held by that undertaking in issuing certificates of conformity required in order for a vehicle of that marque to be registered and that, in that case, the Court of Justice held that the relevant market was not that of the sale of vehicles, but a separate ancillary market, namely that of services which were in practice indispensable for dealers who wished to sell the vehicles manufactured by British Leyland.
171 The present case must be seen as being of a parallel nature in that what is in issue is not the market for groundhandling services but that of the management of airport facilities, which are indispensable for the provision of those services and to which ADP provides access.
172 As regards the criticism directed at paragraph 127 of the contested judgment, where the Court of First Instance points out that after the period in issue ADP imposed a fee on operators who were not entitled to occupy privately publicly-owned property, it need merely be observed that in that paragraph the Court of First Instance expressly points out that it refers to that matter only for the sake of completeness, an explanation not criticised by the appellant in its appeal.
173 Only in the alternative is it necessary to consider the arguments of the appellant relative to the definition of the geographical market.
174 It need merely be said in that regard that it follows from what has just been stated that those arguments cannot be accepted.
175 It is clear from what has already been said that ADP makes access available to the airport facilities in which, by definition, the provision of groundhandling services must be made available. This characteristic differentiates ADP's services from those of every other owner of land or buildings in the Paris region. It follows that the Court of First Instance was right in holding that the relevant market did not extend to all of the land and buildings in that region.
176 It follows from the foregoing that this plea should be rejected as being partly inadmissible and partly without foundation.
Ninth plea, relating to the existence of a dominant position
177 This plea is directed in particular at paragraphs 149 and 151 of the contested judgment. The Court of First Instance held that `the relevant market in the present case is the market in management services for the Paris airports, ADP indisputably enjoys a dominant position, and even a legal monopoly. Under Article L. 251-2 of the Civil Aviation Code, ADP has a legal monopoly to manage the airports concerned and is alone able to confer authorisation to carry out groundhandling activities there and to determine the conditions in which those activities are carried out'.
178 It added that `the argument alleging failure to take into account all the land and buildings in the Paris area cannot be upheld, since the management of airport services, which is the relevant market in the present case, concerns only the airport precincts, the supply of services by ADP, and only ADP, being a necessary condition of the provision of groundhandling services'.
179 The appellant submits that in making this finding the Court of First Instance infringed Article 86 of the Treaty.
180 It repeats in this regard that the fees in issue are exclusively payable in consideration for the private occupation of publicly-owned property, which is not indispensable to the provision of groundhandling services.
181 That publicly-owned property, over which ADP has no `monopoly' but only rights equivalent to those of an owner, is accordingly not a market for the purposes of competition law.
182 In contrast, the relevant market includes all the buildings and properties in the Paris region capable of affording providers of groundhandling services with facilities equivalent to those available at ADP's publicly-owned property, in consideration for which the fees in issue are payable.
183 It is clear that the appellant does not occupy a dominant position in such a market, as the publicly-owned property in question represents only an extremely small part of the relevant buildings and premises.
184 As regards the authorisation issued at the time by ADP giving access to the restricted zone in the airport precincts, the appellant repeats that that authorisation, should it be needed, was in no way restricted to service providers having private occupation of publicly-owned property and that no fee was payable for its issue as such. It cannot, therefore, be relevant in a case involving, according to the appellant, fees charged as consideration for the private occupation of publicly-owned property.
185 This plea is closely linked to the preceding plea, to the extent that in challenging the definition of the relevant market given by the Court of First Instance and arguing that the relevant market is much wider, it is inevitable that the appellant has to challenge the finding of the Court of First Instance relating to the existence of a dominant position.
186 The points made by the appellant referred to above are extremely similar to those made at first instance, under the third part of the fourth plea. The Commission submits in this regard that the plea is inadmissible for that reason.
187 However, I do not agree with that analysis, given that the appellant makes specific criticisms of the reasoning by which the Court of First Instance infers the existence of a dominant position from ADP's powers.
188 It follows that the plea is admissible.
189 As far as the substance of the plea is concerned, the description of it just given shows at once that it is based on the same premisses as the preceding plea and that it must therefore be rejected. As regards the nature of the fees as consideration for the private occupation of publicly-owned property which is not indispensable for offering groundhandling services, and the possibility of obtaining the authorisation for no fee, it is appropriate to refer to what has been said above, in the analysis of the eighth plea, namely that it is access to the airport facilities that constitutes the relevant market in the present case.
190 The appellant's assertion that there can be no question of a monopoly here, as its powers over the facilities in question are those which any owner has, does not call into question the validity of the reasoning of the Court of First Instance. As owner, ADP is the only party in a position, as it itself admits, moreover, to authorise, and, as the case may be, to refuse access to the airport facilities and to specify the conditions relating to that access, without which, by definition, the provision of groundhandling services is impossible.
191 It is precisely on that point on which the Court of First Instance based itself, at paragraph 149 of the contested judgment, in finding, rightly, that there was a dominant position, which is characterised, as it correctly pointed out at paragraph 147 of the judgment, by the opportunity for ADP to act to a considerable extent independently of its competitors, their customers and, ultimately, of consumers.
192 It was also appropriate for the Commission to draw an analogy with the judgment in Portugal v Commission (36), where this Court held, in relation to airport charges for the landing and take-off of aircraft, that an airport authority which holds exclusive rights granted to it by the State holds a dominant position in the market for services linked to access to airport facilities.
193 It should, incidentally, be noted that the appellant's argument that it possesses on its publicly-owned property no greater powers than those of any owner appears, on the face of it, difficult to reconcile with its insistence on its powers as a public authority, which it uses to justify the inapplicability of competition law in the present case.
194 It follows from the foregoing that this plea should be rejected.
Tenth plea, relating to infringement of Article 86 of the Treaty in comparing the fees paid by AFS and OAT
195 The appellant criticises the method used by the Court of First Instance for comparing the fees paid to ADP by AFS and OAT in order to determine whether they are discriminatory.
196 First, it criticises the Court of First Instance for not having taken into account the fixed part of the fee on the ground that it constituted remuneration for the occupation of publicly-owned property, which was not in issue in the case.
197 In so doing, the Court of First Instance misrepresented the functions of the fee in question. In this regard, the appellant repeats its argument that the two elements of the fee are incapable of separation, as they constitute a single fee levied for the private occupation of publicly-owned property.
198 It must be recalled, however that it has already been stated above that the Court of First Instance was not guilty of any misrepresentation in rejecting the appellant's contention.
199 That contention is, furthermore, also contradicted by certain matters raised by AFS. The latter notes that clause 23.2 of the agreement entered into between it and ADP states that the commercial fee is payable when services are developed by AFS in its facilities at Rungis, that is to say outside the airport precincts and having no connection with the private occupation of publicly-owned property.
200 The same was the case when AFS was, exceptionally, authorised to operate on a temporary basis at Roissy-Charles de Gaulle airport, that is to say outside the precincts which it was entitled to occupy at Orly airport.
201 The Court of First Instance was therefore correct in holding that the fee was not wholly payable as consideration for the private occupation of publicly-owned property and that it was appropriate to analyse separately the variable part of the fee, which was the counterpart of the licence to supply services, at issue in the contested decision, unlike the State part of the fee, which was not charged in the case of AFS (`No State fee is payable'). Accordingly, it was also right in not taking the latter into account when comparing the treatment of the service providers AFS and OAT.
202 The applicant next claims that the Court of First Instance made an error of law amounting to an infringement of Article 86 of the Treaty, in holding that the comparison of the fees paid by AFS and OAT should take into account OAT's turnover in self-handling.
203 In order to establish discrimination, it is necessary to compare the fees relating to the only activity in respect of which AFS and OAT are in competition, namely handling for third parties. On the other hand, if it were shown, as ADP alleges, that the fees payable by the two competitors represented a practically identical proportion of the relevant turnover, that is to say of that relating to the activities in respect of which those undertakings are in competition, there could be no discrimination.
204 The considerations set out by the Court of First Instance relating to the possible effect of the rate of fee payable in respect of self-handling on the market in handling for third parties are therefore irrelevant.
205 ADP further states that, in its complaint, AFS raised only the question of handling for third parties. This demonstrates that only one rate is legally relevant. The Court of First Instance should therefore have limited its analysis to this point.
206 It should be emphasised that the object of the contested decision is the finding of an infringement of Article 86 of the Treaty by ADP. The second paragraph of that provision, at subparagraph (c), prohibits, I would repeat, an undertaking which has a dominant position within a substantial part of the Common Market from `applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage'.
207 It therefore fell to the Court of First Instance to establish whether, in the present case, ADP imposed on providers of groundhandling services, whether airlines or providers of handling for third parties, unequal conditions for equivalent services.
208 In that regard, the Court of First Instance found, without subsequently being contradicted on the point, that ADP offered equivalent services to self-handlers and providers of handling for third parties. It follows necessarily that these two activities cannot be subject to different conditions. The Court of First Instance was therefore correct in holding that in order to compare the fees paid by the different service providers it was appropriate to have regard both to self-handling and handling for third parties.
209 Because both of those categories of activity benefit from and receive the same services from ADP, they must be treated in a non-discriminatory manner as regards the relations between ADP and its commercial partners.
210 As far as the `competitive disadvantage' required by Article 86 of the Treaty is concerned, this was also found to exist by the Court of First Instance when it stated that the reduced level of fee payable by self-handlers allows service providers licensed in relation to both classes of service to write off their investments and accordingly to offer better conditions for handling for third parties. As a result, those service providers benefit from an advantage in competing with those who are only licensed to provide groundhandling services for third parties.
211 Furthermore, a preferential rate such as that may induce certain airlines to practise self-handling rather than using the services of a third party.
212 The appellant has not challenged the truth of those findings. It must therefore be accepted that the Court of First Instance, in conformity with the requirements of Article 86 of the Treaty, found that there was a distortion of competition in the market for groundhandling services, resulting from the discriminatory fees charged by ADP to the providers of these services.
213 The fact, emphasised by the appellant, that the complaint by AFS did not relate to the rate charged for handling for third parties, is irrelevant. As the Commission most judiciously points out, the content of the complaint cannot have the effect of binding the Commission as regards the determination of the infringements which are the subject of the proceeding. As it has the power to initiate the proceeding of its own motion, the Commission is entitled to make findings in relation to practices that were not covered by the complaint. (37)
214 The contested judgment, for its part, can relate only to the legality of the contested decision, and the Court of First Instance does not have to restrict its analysis to the content of the complaint.
215 It follows from the foregoing that this plea should be rejected.
Conclusions
216 In light of the foregoing, I propose that the Court should:
- dismiss the appeal;
- order the appellant to pay the costs, including those of AFS.
(1) - OJ 1998 L 230, p. 10.
(2) - Case T-128/98 [2000] ECR II-3929 (hereinafter `the contested judgment').
(3) - Case C-91/95 P [1996] ECR 1-5547, paragraphs 10 and 11.
(4) - Joined Cases 95/74 to 98/74, 15/75 and 100/75 [1975] ECR 1615.
(5) - Case C-174/96 P [1996] ECR I-6401.
(6) - Council Regulation of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1).
(7) - Council Regulation of 6 February 1962, first Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1962, p. 291).
(8) - Case C-264/95 P [1997] ECR I-1287.
(9) - Council Regulation of 26 November 1962 exempting transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291).
(10) - Council Regulation of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302).
(11) - Emphasis added.
(12) - See, for example, Case C-36/98 Spain v Council [2001] ECR I-779, paragraph 49.
(13) - OJ 1991 L 122, p. 2.
(14) - Council Regulation of 14 December 1987 on the application of Article 85(3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector (OJ 1987 L 374, p. 9).
(15) - Council Directive of 15 October 1996 on access to the groundhandling market at Community airports (OJ 1996 L 272, p. 36).
(16) - Case C-244/92 P Kupka-Floridi v Economic and Social Committee [1993] ECR I-2041, paragraphs 9 and 10.
(17) - Paragraph 9.
(18) - Paragraph 108 of the grounds of the contested decision.
(19) - Paragraphs 109 to 127 of the grounds of the contested decision.
(20) - ADP cites Case C-64/98 P Petrides v Commission [1999] ECR I-5187, paragraph 16, and Case C-401/96 Somaco v Commission [1998] ECR I-2587, paragraph 54.
(21) - See Case C-237/98 P Dorsch Consult v Council and Commission [2000] ECR I-4549, paragraphs 35 and 36.
(22) - The agreement between ADP and the groundhandler OAT is expressed in similar terms.
(23) - Emphasis added.
(24) - Emphasis added.
(25) - Emphasis added.
(26) - Emphasis added.
(27) - See, for example, Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 47.
(28) - For the most recent case law, see Case C-218/00 Cisal de Battistello Venanzio [2002] ECR I-691, paragraph 22.
(29) - Paragraphs 112 to 121 of the contested judgment.
(30) - See Cisal de Battistello Venanzio, paragraph 23 and the cases cited there.
(31) - Case 30/87 Bodson v Pompes funèbres des régions libérées [1988] ECR 2479 and Case C-364/92 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43.
(32) - Paragraph 122 of the contested judgment.
(33) - Case 41/83 Italy v Commission [1985] ECR 873 and Case T-229/94 Deutsche Bahn v Commission [1997] ECR II-1689.
(34) - Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 22.
(35) - Case 226/84 [1986] ECR 3263.
(36) - Case C-163/99 [2001] ECR I-2613.
(37) - Joined Cases 32/78, and 36/78 to 82/78 BMW Belgium and Others v Commission [1979] ECR 2435, paragraph 18.