Proposal for a Council Directive on access to the groundhandling market at Community airports (95/C 142/09) COM(94) 590 final - 94/0325(SYN)

(Submitted by the Commission on 10 April 1995)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 84 (2) thereof,

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas the Community has gradually introduced a common air transport policy with the aim of completing the internal market in accordance with Article 7a of the Treaty;

Whereas the internal market comprises an area free of internal frontiers in which the free movement of goods, persons, services and capital is assured;

Whereas the objective of Article 59 of the Treaty is to eliminate the restrictions on the freedom to provide services in the Community and that, in accordance with Article 61 (1) of the Treaty, this objective must be achieved within the framework of the common transport policy;

Whereas through Council Regulations (EEC) No 2407/92 (1), (EEC) No 2408/92 (2) and (EEC) No 2409/92 (3) that objective has been attained with regard to air transport services as such;

Whereas groundhandling services form an integral part of the air transport system; whereas such services are essential to the proper functioning of this mode of transport and whereas they make an essential contribution to the efficient use of air transport infrastructure;

Whereas groundhandling services are essential to the supply of air transport services, which by their nature extend beyond national frontiers and fall directly within the framework of intra-Community trade;

Whereas with respect to the principle of subsidiarity it is essential that access to the groundhandling market should take place within a common framework, while allowing Member States the possibility of taking into consideration the specific nature of the sector;

Whereas in its communication of 1 June 1994 'The Way Forward for Civil Aviation in Europe` the Commission indicated its intention to take an initiative before the end of 1994 in order to achieve market access for groundhandling services at Community airports and whereas the Council in its resolution of 24 October 1994 has confirmed the need to take account of the imperatives linked to the situation of airports when effecting the opening of the market;

Whereas access to the groundhandling market would not affect the efficient operation of Community airports;

Whereas it is, therefore, necessary to establish the arrangements for access to the groundhandling market at Community airports and whereas it is essential to take account of the existing situation at airports;

Whereas, for certain categories of services, however, access to the market and self-handling may come up against safety, security, available capacity and space constraints; whereas it is, therefore, necessary to be able to limit the number of suppliers of such categories of services; whereas it should also be possible to limit self-handling and whereas the criteria for such limitation must be relevant, objective, transparent and non- discriminatory;

Whereas, if the number of suppliers is limited, the maintenance of effective competition will require that at least one of the suppliers should be independent of both the managing body of the airport and the dominant carrier;

Whereas the proper functioning of airports requires them to be able to reserve for themselves the management of certain infrastructures, which for technical reasons as well as for reasons of profitability and safety are difficult to divide or duplicate; whereas the centralized management of such infrastructures may not, however, constitute an obstacle to their use by groundhandlers or by self-handling users;

Whereas in certain cases, these constraints can be such that they may justify restrictions on market access or self-handling to the extent that these restrictions are adapted, transparent and non-discriminatory;

Whereas the purpose of such exemptions must be to enable airports to overcome or at least to reduce these constraints; whereas these exemptions must be approved by the Commission and must be granted for a specific period;

Whereas if fair and effective competition is to be maintained where the number of suppliers of services is limited, the latter need to be chosen according to a transparent and impartial procedure; whereas users should be involved in the selection since they have a major interest in the quality and price of the services which they require;

Whereas it is therefore important to organize the representation of users and their participation in the selection of authorized suppliers by setting up a committee composed of their representatives;

Whereas the managing body of the airport may also supply groundhandling services and, through its decisions, may exercise considerable influence on competition between suppliers of groundhandling services; whereas it is therefore essential, in order to maintain fair competition, that airports establish a clear separation between their infrastructure management and regulatory activities on the one hand and the supply of groundhandling services on the other;

Whereas the same transparency requirements must apply to users who have attained a significant volume of traffic at an airport and wish to provide groundhandling services to third parties;

Whereas in order to enable to fulfil their management functions and to guarantee safety and security on the airport premises as well as to protect the environment, Member States must be able to make the supply of groundhandling services subject to approval; whereas the criteria for granting such approval must be objective, transparent and non-discriminatory;

Whereas, for the same reasons, Member States must retain the power to lay down and apply the necessary rules for the proper functioning of the airport infrastructure; whereas these rules must, however, comply with the principles of objectivity, transparence and non-discrimination;

Whereas access to airport installations must be guaranteed to suppliers wishing to provide groundhandling services and to carriers wishing to self-handle to the extent necessary for them to exercise their rights;

Whereas it is justified that the rights recognized by this Directive should only apply to third country suppliers and carriers subject to strict reciprocity; whereas where there is no such reciprocity the Commission should be able to suspend these rights with regard to those suppliers and carriers;

Whereas this Directive does not affect the application of the rules of the Treaty and whereas in particular the Commission will continue to ensure compliance with these rules by exercising, when necessary, the powers granted to it by Article 90 of the Treaty,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Definitions

For the purposes of this Directive:

1. 'airport user` means any physical or legal person responsible for the carriage of passengers, mail and/or freight by air from or to the airport in question;

2. 'groundhandling` means the services provided to users at airports as described in the Annex;

3. 'self-handling` means a groundhandling arrangement, whereby a user directly provides for himself one or more categories of groundhandling services and concludes no contract of any description with a third party for the provision of such services;

4. 'supplier of groundhandling services` means any natural or legal person supplying third parties with one or more categories of groundhandling services;

5. 'airport system` means any set of airports grouped together to serve the same city or conurbation, as definied in Annex II to Council Regulation (EEC) No 2408/92;

6. 'managing body of the airport` means body which by national law or regulation has as its objective the management of the airport infrastructures, the coordination and control of the activities of the different operators present in the airport or airport system concerned.

Article 2

Scope

1. This Directive applies to any airport located on the territory of a Member State open to commercial traffic.

However, the provisions of Articles 4, 5, 6, 10, 11 and 12 shall apply only to airports:

- whose annual traffic is not less than 2 million passenger movements or 50 000 tonnes of freight, or

- whose traffic over the precedings 18 months is not less than one million passenger movements or 25 000 tonnes of freight during any period of six consecutive months.

2. The Commission shall publish, for information, in the Official Journal of the European Communities a list of the airports referred to in the second subparagraph of paragraph 1. The list shall first be published within three months following the entry into force of this Directive, and then annually.

Member States shall, before 1 July of each year, forward to the Commission the data required to compile the list.

Article 3

Managing body of the airport

1. Where an airport or airport system is managed and operated not by a single body but by several separate bodies, each of these shall be considered part of the managing body of the airport for the purposes of this Directive.

2. Where a single managing body is set up for several airports or airport systems, each of these shall be considered separately for the purposes of this Directive.

3. If the legislation of a Member State places the managing bodies of one or more airports or airport systems under the supervision or control of a public authority, the obligations imposed by this Directive on those managing bodies shall also be imposed on the public authorities which control them.

Article 4

Unbundling

1. Where the managing body of an airport provides groundhandling services it must unbundle the management and accounts of its groundhandling activities from its other activities.

2. A user who in the previous year has carried in excess of 25 % of the freight or passengers recorded at an airport may not itself provide groundhandling services to third parties at that airport without unbundling the management and accounts of the transport activity from the supply of groundhandling services to third parties.

3. An independent examiner must check that the unbundling is carried out as required under paragraphs 1 and 2.

The examiner shall, in particular, check the absence of any financial flow from other activities to those of groundhandling.

He shall at all times have access to the accounts of the undertaking. He shall report to the Commission at least once a year and each time he ascertains a failure to maintain the mandatory unbundling.

Article 5

The Users' Committee

1. Twelve months at the latest following the entry into force of this Directive, Member States shall introduce the measures necessary to set up a committee of users' representatives for each of the airports referred to in the second subparagraph of Article 2 (1).

2. All users shall have the right to be on the committee or, if they so wish, to be represented on it by an organization appointed to that effect. The decision-making procedure of the committee may take account of the volume of activity of the various users of the airport in question, while still ensuring that each of them is represented.

Article 6

Groundhandling for third parties

1. Member States shall, no later than two years after the entry into force of this Directive, take the necessary measures in order to ensure free access to the market for the provision of groundhandling services to third parties.

2. Member States may limit the number of suppliers authorized to provide the following categories of groundhandling services:

- baggage handling,

- ramp handling,

- fuelling,

- freight and mail handling.

They may not, however, limit this number to less than two for each category of service. Moreover, at least one of the suppliers may not, directly or indirectly, be controlled by:

- the managing body of the airport,

- any user who has carried more than 25 % of the passengers or freight recorded at the airport during the year preceding that in which the suppliers are selected,

- a body controlling or controlled directly or indirectly by that managing body or any such user.

3. Without prejudice to paragraph 2, Member States shall ensure that any airport user can call upon the groundhandling services of the supplier of his choice, whatever parts of the airport are allocated to them.

Article 7

Self-handling

1. Member States shall, no later than two years following the entry into force of this Directive, take the necessary measures to ensure the freedom to self-handle.

2. For the following categories of groundhandling services:

- baggage handling,

- ramp handling,

- fuelling,

- freight and mail handling.

Member States may reserve the right to self-handle to a limited number of users, provided they are chosen on the basis of relevant, objective, transparent and non-discriminatory criteria.

Article 8

Centralized infrastructures

1. Without prejudice to the application of Articles 6 and 7, Member States may reserve the technical management of the centralized baggage sorting, de-icing, water purification and fuel distribution infrastructures either for the managing body of the airport or for another body. They may make it obligatory for suppliers of groundhandling services and self-handling users to use these infrastructures.

2. Member States shall ensure that the management of the infrastructures referred to in paragraph 1 is transparent, objective and non-discriminatory and, in particular, that it does not hinder its use by suppliers of groundhandling services or self-handling users within the limits laid down by this Directive.

Article 9

Exemptions

1. Where specific constraints of available space or capacity so warrant, the Member State in question may decide:

(a) to limit the number of suppliers of all categories of groundhandling services other than those referred to in Article 6 (2); in this case the provisions of the second subparagraph of Article 6 (2) shall apply;

(b) to reserve to a single supplier the categories of groundhandling services referred to in Article 6 (2);

(c) to reserve self-handling to a limited number of users for the categories of groundhandling services other than those referred to in Article 7 (2), provided they are chosen on the basis of relevant, objective, transparent and non-discriminatory criteria.

2. All exemptions decided pursuant to paragraph 1 must:

(a) specify the category or categories of services for which the exemption is granted and the technical constraints which justify it;

(b) be accompanied by an airport development plan to overcome the constraints.

3. Member States shall notify the Commission, at least three months before they enter into force, of any exemptions they grant on the basis of paragraph 1 and of the grounds which justify them.

The Commission shall publish a summary of the decisions of which it is notified in the Official Journal of the European Communities and shall invite interested parties to submit comments.

4. Exemptions may enter into force at the end of the three-month period following their notification to the Commission unless during the same period the latter informs the Member State concerned either that it is opposed to the decision or that it intends to carry out a further examination, which, however, may not take longer than three months. Within the context of the examination the Commission may authorize the provisional application, in full or in part, of the decision in question, taking account, inter alia of the possibility of irreversible effects.

The Commission may seek assistance from one or more experts.

5. The Commission may also restrict the exemptions provided for in this Article to those parts of an airport or airport system where the constraints referred to have been proven to exist.

6. Exemptions granted by Member States pursuant to paragraph 1 may not exceed a duration of three years. At the end of that period the Member State must take a new decision on the request for an exemption and this, too, will be subject to the procedure laid down in this Article.

Article 10

Selection of suppliers

1. Member States shall take the necessary measures to organize a selection procedure for suppliers authorized to provide groundhandling services at an airport where their number is limited in the cases laid down in Article 6 (2) or Article 9. This procedure must comply with the following principles:

(a) in cases where Member States require the establishment of standard conditions or technical specifications to be met by the suppliers, these conditions or specifications shall be established by the managing body of the airport and the User's Committee. The selection criteria laid down in the standard conditions or technical specifications must be relevant, objective, transparent and non-discriminatory;

(b) an invitation to tender must be launched and published in the Official Journal of the European Communities, to which any interested supplier may reply, subject to the provisions of Article 16;

(c) the suppliers shall be chosen:

(i) following consultation of the Users' Committee by the managing body of the airport, provided the latter:

- does not provide groundhandling services,

- has no control, direct or indirect, over any undertaking which provides such services, and

- has no involvement in any such undertaking;

(ii) by the Users' Committee, in all other cases. Each user may then vote for only one supplier for each category of service;

(d) suppliers shall be selected for a maximum period of seven years;

(e) where a supplier ceases his activity before the end of the period for which he was selected, he shall be replaced on the basis of the same procedure. However, users who provide groundhandling services at the airport in question or have direct or indirect control over an undertaking which provides such services may in that case not take part in the vote.

2. Where the number of suppliers is limited in accordance with Article 6 (2) or Article 9, the managing body of the airport may itself provide groundhandling services without being subject to the selection procedure laid down in paragraph 1. Also, it may, without submitting it to the said procedure, authorize an undertaking to provide groundhandling services at the airport in question:

- if it controls that undertaking directly or indirectly, or

- if the undertaking controls it directly or indirectly.

Article 11

Consultations

Member States shall take the necessary measures to organize a compulsory consultation procedure between the managing body of the airport, the User's Committee and the undertakings providing services. This consultation shall cover, inter alia, the price of those services which have been exempted by the Commission pursuant to Article 9 as well as the organization of the provision of the services. Such consultation shall be organized at least once every year.

Article 12

Approval

1. Member States may make the activity of a supplier of groundhandling services conditional upon obtaining the approval of a public authority independent of the managing body of the airport.

The approval criteria must relate to the security and safety of the installations, of the aircraft, of the equipment and of persons, as well as to the protection of the environment.

The criteria must be published and the supplier must be informed beforehand of the approval procedure.

2. Approval may be withheld only if the supplier does not meet, for reasons of his doing, the criteria referred to in paragraph 1.

The grounds for withholding approval must be communicated to the supplier concerned.

Article 13

Rules of conduct

1. A Member State may withdraw its approval of a supplier or prohibit a user from self-handling if that supplier or user fails to comply with the rules imposed upon him to ensure the proper functioning of the airport.

The rules must embody the following principles:

(a) they must be applied in a non-discriminatory manner to the various suppliers and users;

(b) they must relate to the intended objective;

(c) they may not in practice reduce market access or the freedom to self-handle to a lesser degree than that provided for in this Directive.

2. A Member State may, in particular, require suppliers of groundhandling services at an airport to participate in a fair and non-discriminatory manner in carrying out public service obligations laid down in national laws or rules, including the obligation to ensure continuous service.

Article 14

Access to installations

1. Member States shall take the necessary measures to ensure that suppliers of groundhandling services and users wishing to self-handle have access to airport installations to the extent necessary for them to exercise their rights. If the managing body of the airport or, where appropriate, the public authority which controls it places conditions upon such access, those conditions must be relevant, objective, transparent and non-discriminatory.

2. The space available at an airport must be divided among the various suppliers of groundhandling services and self-handling users on the basis of relevant, objective, transparent and non-discriminatory rules and criteria. These rules and cirteria may not give suppliers already operating at an airport or users already self-handling an advantage over new entrants.

3. Access to airport installations for suppliers of groundhandling services and users wishing to self-handle may give rise to the collection of a fee intended to cover the costs which this access occasions for the airport and reflecting the level of the costs. This fee must be determined according to objective, transparent and non-discriminatory cirteria.

Article 15

Safety and security

The provisions of this Directive in no way affect the rights and obligations of Member States in respect of safety and security at airports.

Article 16

Reciprocity

1. Without prejudice to the international commitments of the Community, when it appears that, in terms of access to the groundhandling or self-handling market, a third country:

(a) is not, de jure or de facto, granting Community suppliers and users treatment equivalent to that reserved by Member States for the suppliers and users of that third country; or

(b) is not, de jure or de facto, granting Community suppliers and users treatment equivalent to that granted to national suppliers and users; or

(c) is, de jure or de facto, granting suppliers and users from one or more other third countries a more favourable treatment than that for Community suppliers and users;

the Commission may suspend, in full or in part, the obligations arising from this Directive with regard to suppliers and users from that third country.

2. Member States shall inform the Commission of any serious difficulty, de jure or de facto, encountered in third countries by Community suppliers in providing groundhandling services or by Community users in self-handling.

Article 17

Right of appeal

Member States shall ensure that any party with a legitimate interest has the right to appeal against the decisions taken pursuant to Articles 7 (2) and Articles 10 to 14.

It must be possible to bring the appeal before a national court or another public authority independent of the managing body of the airport concerned and, where appropriate, of the public authority controlling it.

Article 18

Information report

Member States shall communicate to the Commission the information required by it to draw up a report on the application of this Directive.

The report shall be drawn up in the two years following the date referred to in Articles 6 (1) and 7 (1).

Article 19

Implementation

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 1996. They shall immediately inform the Commission thereof.

When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

Article 20

Entry into force

This Directive shall enter into force on the 20th day following its publication in the Offical Journal of the European Communities.

Article 21

Addressees

This Directive is addressed to the Member States.

(1) OJ No L 240, 24. 8. 1992, p. 1.

(2) OJ No L 240, 24. 8. 1992, p. 8.

(3) OJ No L 240, 24. 8. 1992, p. 15.

ANNEX

LIST OF GROUNDHANDLING SERVICES

1. Ground administration and supervision comprise:

- representation and liaison services with local authorities or any other entity, disbursements on behalf of the carrier and provision of office space for its representatives,

- load control and communication,

- handling, storage and administration of unit load devices,

- any other supervision services before, during or after the flight and any other administrative service requested by the user.

2. Passenger handling comprises any kind of assistance to arriving, departing, transfer or transit passengers, in or outside the airport, including checking tickets and travel documents, registering baggage and carrying it to the sorting area.

3. Baggage handling comprises handling baggage in the sorting area, sorting it, preparing it for departure, loading it onto and unloading it from devices aimed at carrying it from the aircraft to the sorting area and conversely.

4. Freight and mail handling comprises:

- for freight: physical handling of export, transit and import freight, handling of related documents, customs procedures and implementation of any security procedure agreed with the carrier or imposed by the circumstances,

- for mail: handling of incoming and outgoing mail, of related documents and implementation of any security procedure agreed with the carrier or imposed by the circumstances.

5. Ramp handling comprises:

- the leading of the aircraft on the ground at arrival and departure,

- the assistance to aricraft parking and provision of suitable devices,

- the organization of communication between the aircraft and the ground,

- the loading and unloading of the aircraft, including the provision and operation of suitable means as well as the transport of crew and passengers between the aircraft and the terminal,

- the provision and operation of appropriate units for engine starting,

- the organization of safety measures against fire and other risks, as well as the provision and operation of appropriate devices,

- the moving of the aircraft at arrival and departure, as well as the provision and operation of suitable devices.

6. Aircraft servicing comprises:

- the external and internal cleaning of the aircraft, the toilet and water services,

- the cooling and heating of the cabin, the removal of snow and ice, the de-icing of the aircraft, the rearrangement of the cabin with suitable cabin equipment, the storage of this equipment.

7. Fuel and oil handling comprises:

- the organization and execution of fuelling and defuelling operations, including the storage of fuel and the control of the quality and quantity of fuel deliveries,

- the replenishing of oil and other fluids.

8. Aircraft maintenance comprises:

- routine services performed before flight,

- non-routine services requested by the carrier,

- the provision and administration of spare parts and suitable equipment,

- the provision of or arrangement for a suitable parking and/or hangar space.

9. Flight operations and crew administration comprise:

- the preparation of the flight at the departure airport or at any other point,

- the in-flight assistance, including redespatching if needed,

- the post-flight activities,

- the crew administration.

10. Surface transport comprises:

- the organization and execution of crew, passenger, baggage, cargo and mail transport between the airport and any other point or between different terminals of the same airport, but exlcuding the same transport between the aircraft and any other point,

- any special transport requested by the carrier.

11. Catering services comprise:

- the liaison with suppliers and administrative management,

- the transport, loading onto and unloading from the plane of food and beverages,

- the storage of food, beverages and equipment needed for their preparation,

- the cleaning of this equipment,

- the preparation and delivery of equipment as well as of bar and food supplies.