COMMON POSITION (EC) No 21/96

Adopted by the Council on 28 March 1996

with a view to adopting Council Directive 96/. . ./EC on access to the ground-handling market at Community airports

(96/C 134/05)

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 (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189c of the EC Treaty (3),

(1) 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 EC Treaty as a lasting contribution to promoting economic and social progress;

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

(3) Whereas through Council Regulation (EEC) No 2407/92 (4), (EEC) No 2408/92 (5) and (EEC) No 2409/92 (6) that objective has been attained with regard to air transport services as such;

(4) Whereas ground-handling services are essential to the proper functioning of air transport; whereas they make an essential contribution to the efficient use of air transport infrastructure;

(5) Whereas the opening up of access to the ground-handling market should help reduce the operating costs of airline companies and improve the quality of service provided to airport users;

(6) Whereas in the light of the principle of subsidiary it is essential that access to the ground-handling market should take place within a Community framework, while allowing Member States the possibility of taking into consideration the specific nature of the sector;

(7) Whereas in its communication of June 1994 entitled 'The way forward for civil aviation in Europe` the Commission indicated its intention of taking an initiative before the end of 1994 in order to achieve access to the ground-handling market at Community airports; whereas the Council, in its resolution of 24 October 1994 on the situation in European civil aviation (7), confirmed the need to take account of the imperatives linked to the situation of airports when opening up the market;

(8) Whereas, in its resolution of 14 February 1995 on European civil aviation (8), the European Parliament repeated its concern that account should be taken of the impact of access to the ground-handling market on employment and safety conditions at Community airports;

(9) Whereas free access to the ground-handling market is consistent with the efficient operation of Community airports;

(10) Whereas free access to the ground-handling market must be introduced gradually and be adapted to the requirements of the sector;

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

(12) Whereas if the number of suppliers of ground-handling services is limited effective competition will require that at least one of the suppliers should ultimately be independent of both the managing body of the airport and the dominant carrier;

(13) Whereas if airports are to function properly they must be able to reserve for themselves the management of certain infrastructures which for technical reasons as well as for reasons of profitability or environmental impact are difficult to divide or duplicate; whereas the centralized management of such infrastructures may not, however, constitute an obstacle to their use by suppliers of ground-handling services or by self-handling airport users;

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

(15) Whereas the purpose of such exemptions must be to enable airport authorities to overcome or at least reduce these constraints; whereas these exemptions must be approved by the Commission, assisted by an advisory committee, and must be granted for a specific period;

(16) Whereas, if effective and fair competition is to be maintained where the number of suppliers of ground-handling services is limited, the latter need to be chosen according to a transparent and impartial procedure; whereas airport users should be consulted when it comes to selecting suppliers of ground-handling services, since they have a major interest in the quality and price of the ground-handling services which they require;

(17) Whereas it is therefore necessary to arrange for the representation of airport users and their consultation when authorized suppliers of ground-handling services are selected, by setting up a committee composed of their representatives;

(18) Whereas it is possible in certain circumstances and under specific conditions, in the context of selecting suppliers of ground-handling services at an airport, to extend the public service obligation to other airports in the same geographical region of the Member State concerned;

(19) Whereas the managing body of the airport may also supply ground-handling services and, through its decisions, may exercise considerable influence on competition between suppliers of ground-handling services; whereas it is therefore essential, in order to maintain fair competition, that airports be required to keep separate accounts for their infrastructure management and regulatory activities on the one hand and for the supply of ground-handling services on the other;

(20) Whereas an airport may not subsidize its ground-handling activities from the revenue it derives from its role as an airport authority;

(21) Whereas the same transparency requirements must apply to all suppliers wishing to offer ground-handling services to third parties;

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

(23) Whereas, for the same reasons, Member States must retain the power to lay down and enforce the necessary rules for the proper functioning of the airport infrastructure; whereas those rules must relate to the intended objective and must not in practice reduce market access or the freedom to self-handle to a level below that provided for in this Directive; whereas the rules must comply with the principles of objectivity, transparency and non-discrimination;

(24) Whereas Member States must retain the power to ensure an adequate level of social protection for the staff of undertakings providing ground-handling services;

(25) Whereas access to airport installations must be guaranteed to suppliers authorized to provide ground-handling services and to airport users authorized to self-handle, to the extent necessary for them to exercise their rights and to permit fair and genuine competition; whereas it must be possible however, for such access to give rise to the collection of a fee;

(26) Whereas it is justified that the rights recognized by this Directive should only apply to third-country suppliers of ground-handling services and third-country airport users subject to strict reciprocity; whereas where there is no such reciprocity the Member State should be able to suspend these rights with regard to those suppliers and users;

(27) Whereas arrangements for greater cooperation over the use of Gibraltar airport were agreed in London on 2 December 1987 by the Kingdom of Spain and the United Kingdom in a joint declaration by the Ministers for Foreign Affairs of the two countries, and such arrangements have yet to come into operation;

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

HAS ADOPTED THIS DIRECTIVE:

Article 1

Scope

1. This Directive applies to any airport located in the territory of a Member State, subject to the provisions of the Treaty, and open to commercial traffic in the following circumstances:

(a) The provisions of Article 7 (1) relating to categories of ground-handling services other than those referred to in Article 7 (2) shall apply to any airport regardless of its volume of traffic as from 1 January 1998.

(b) The provisions relating to the categories of ground-handling services referred to in Article 7 (2) shall apply as from 1 January 1998 to airports whose annual traffic is not less than 1 million passenger movements or 25 000 tonnes of freight.

(c) The provisions relating to the categories of ground-handling services referred to in Article 6 shall apply as from 1 January 1999 to airports:

- whose annual traffic is not less than 3 million passenger movements or 75 000 tonnes of freight, or

- whose traffic has been not less than 2 million passenger movements or 50 000 tonnes of freight during the six-month period prior to 1 April or 1 October of the preceding year.

2. Without prejudice to paragraph 1, the provisions of this Directive shall apply as from 1 January 2001 to any airport located in the territory of a Member State, subject to the provisions of the Treaty, and open to commercial traffic, whose annual traffic is not less than 2 million passenger movements or 50 000 tonnes of freight.

3. Where an airport reaches one of the freight traffic thresholds referred to in this Article without reaching the corresponding passenger movement threshold, the provisions of this Directive shall not apply to categories of ground-handling services reserved exclusively for passengers.

4. The Commission shall publish, for information, in the Official Journal of the European Communities a list of the airports referred to in this Article. The list shall first be published within three months following the entry into force of this Directive, and thereafter annually.

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

5. Application of this Directive to the airport of Gibraltar is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated.

6. Application of this Directive to Gibraltar airport shall be suspended until the arrangements in the joint declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom will so inform the Council on that date.

Article 2

Definitions

For the purposes of this Directive:

(a) 'airport` means any area of land especially adapted for the landing, taking-off and manoeuvres of aircraft, including the ancillary installations which these operations may involve for the requirements of aircraft traffic and services including the installations needed to assist commercial air services;

(b) 'airport system` means two or more airports grouped together to serve the same city or conurbation, as referred to in Annex II to Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes;

(c) 'managing body of the airport` means a body which, in conjunction with other activities or not as the case may be, has as its objective under national law or regulation the administration and management of the airport infrastructures, and the coordination and control of the activities of the different operators present in the airport or airport system concerned;

(d) 'airport user` means any natural or legal person responsible for the carriage of passengers, mail and/or freight by air from or to the airport in question;

(e) 'ground-handling` means the services provided to airport users at airports as described in the Annex;

(f) 'self-handling` means a situation in which an airport user directly provides for himself one or more categories of ground-handling services and concludes no contract of any description with a third party for the provision of such services; for the purposes of this definition, among themselves airport users shall not be deemed to be third parties where:

- one holds a majority holding in the other,

or

- a single body has a majority holding in each;

(g) 'supplier of ground-handling services` means any natural or legal person supplying third parties with one or more categories of ground-handling services.

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 bodies shall be considered part of the managing body of the airport for the purposes of this Directive.

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

3. If the managing bodies of airports are subject to the supervision or control of a national public authority, that authority shall be obliged, in the context of the legal obligations devolving upon it, to ensure that this Directive is applied.

Article 4

Separation of accounts

1. Where the managing body of an airport, the airport user or the supplier of ground-handling services provide ground-handling services, they must rigorously separate the accounts of their ground-handling activities from the accounts of their other activities, in accordance with current commercial practice.

2. An independent examiner appointed by the Member State must check that this separation of accounts is carried out.

The examiner shall also check the absence of financial flows between the activity of the managing body airport authority and its ground-handling activity.

Article 5

Airport Users' Committee

Twelve months at the latest following the entry into force of this Directive, Member States shall introduce the measures necessary to set up, for each of the airports concerned, a committee of representatives of airport users or organizations representing airport users, on the understanding that all airport users shall have the right to be on this committee or, if they so wish, to be represented on it by an organization appointed to that effect.

Article 6

Ground-handling for third parties

1. Member States shall take the necessary measures in accordance with the arrangements laid down in Article 1 to ensure free access by suppliers of ground-handling services to the market for the provision of ground-handling services to third parties.

Member States shall have the right to require that suppliers of ground-handling services be established within the Community.

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

- baggage handling,

- ramp handling,

- fuel and oil handling,

- freight and mail handling as regards the physical handling of freight and mail, whether incoming, outgoing or being transferred, between the air terminal and the aircraft.

They may not, however, limit this number to fewer than two for each category of ground-handling service.

3. Moreover, as from 1 January 2001 at least one of the authorized suppliers may not be directly or indirectly controlled by:

- the managing body of the airport,

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

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

However, on 1 July 2000, a Member State may request that the obligation in this paragraph be deferred until 31 December 2002.

The Commission, assisted by the Committee referred to in Article 10, shall examine such request and may, having regard to the evolution of the sector and, in particular, the situation at airports comparable in terms of traffic volume and pattern, decide to grant the said request.

4. Where pursuant to paragraph 2 they restrict the number of authorized suppliers, Member States may not prevent an airport user, whatever part of the airport is allocated to him, from having, in respect of each category of ground-handling service subject to restriction, an effective choice between at least two suppliers of ground-handling services, under the conditions laid down in paragraphs 2 and 3.

Article 7

Self-handling

1. Member States shall take the necessary measures in accordance with the arrangements laid down in Article 1 to ensure the freedom to self-handle.

2. However, for the following categories of ground-handling services:

- baggage handling,

- ramp handling,

- fuel and oil handling,

- freight and mail handling as regards the physical handling of freight and mail, whether incoming, outgoing or being transferred, between the air terminal and the aircraft

Member States may reserve the right to self-handle to no fewer than two airport users, provided they are chosen on the basis of relevant, objective, transparent and non-discriminatory criteria.

Article 8

Centralized infrastructures

1. Notwithstanding the application of Articles 6 and 7, Member States may reserve for the managing body of the airport or for another body the management of the centralized infrastructures used for the supply of ground-handling services whose complexity, cost or environmental impact does not allow of division or duplication, such as baggage sorting, de-icing, water purification and fuel distribution systems. They may make it compulsory for suppliers of ground-handling services and self-handling airport users to use these infrastructures.

2. Member States shall ensure that the management of these infrastructures is transparent, objective and non-discriminatory and, in particular, that it does not hinder the access of suppliers of ground-handling services or self-handling airport users within the limits provided for in this Directive.

Article 9

Exemptions

1. Where at an airport specific constraints of available space or capacity, arising in particular from congestion and area utilization rate, make it impossible to open up the market and/or implement self-handling to the degree provided for in this Directive, the Member State in question may decide:

(a) to limit the number of suppliers of all categories of ground-handling services other than those referred to in Article 6 (2); in this case the provisions of Article 6 (2) and (3) shall apply;

(b) to reserve to a single supplier one or more of the categories of ground-handling services referred to in Article 6 (2);

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

(d) to ban self-handling or to restrict it to a single airport user for the categories of ground-handling services referred to in Article 7 (2).

2. All exemptions decided pursuant to paragraph 1 must:

(a) specify the category or categories of ground-handling services for which the exemption is granted and the specific constraints of available space or capacity which justify it;

(b) be accompanied by a plan of appropriate measures to overcome the constraints.

Moreover, exemptions must not:

(i) unduly prejudice the aims of this Directive;

(ii) give rise to distortions of competition between suppliers of ground-handling services and/or self-handling airport users;

(iii) extend further than necessary.

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. The Commission shall examine closely exemption decisions submitted by Member States. To that end the Commission shall make a detailed analysis of the situation and a study of the appropriate measures submitted by the Member State to check that the alleged constraints exist and that it is impossible to open up the market and/or implement self-handling to the degree provided for in this Directive.

5. Further to that examination and after consulting the Member State concerned, the Commission may approve the Member State's decision or oppose it if it deems that the alleged constraints have not been proved to exist or that they are not so severe as to justify the exemption. After consulting the Member State concerned the Commission may also require the Member State to amend the extent of the exemption or restrict it to those parts of an airport or airport system where the alleged constraints have been proved to exist.

The Commission's decision shall be taken no later than three months after notification by the Member State and shall be published in the Official Journal of the European Communities.

6. Exemptions granted by Member States pursuant to paragraph 1 may not exceed a duration of three years except for exemptions granted under paragraph 1 (b). Not later than three months before the end of that period the Member State must take a new decision on any request for exemption, which will also be subject to the procedure laid down in this Article.

Exemptions under paragraph 1 (b) may not exceed a duration of two years. However, a Member State may on the basis of the provisions of paragraph 1 request that this period be extended by a single period of two years. The Commission, assisted by the Committee referred to in Article 10, shall decide on such request.

Article 10

Advisory Committee

1. The Commission shall be assisted by an advisory committee made up of representatives of the Member States and chaired by the representative of the Commission.

2. The Committee shall advise the Commission on the application of Article 9.

3. The Committee may furthermore be consulted by the Commission on any other matter concerning the application of this Directive.

4. The Committee shall establish its own rules of procedure.

Article 11

Selection of suppliers

1. Member States shall take the necessary measures for the organization of a selection procedure for suppliers authorized to provide ground-handling services at an airport where their number is limited in the cases provided for 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 of ground- handling services, those conditions or specifications shall be established following consultation with the Airport Users' Committee. The selection criteria laid down in the standard conditions or technical specifications must be relevant, objective, transparent and non-discriminatory.

After having notified the Commission, the Member State concerned may include among the standard conditions or technical specifications with which suppliers of ground-handling services must comply a public service obligation in respect of airports serving peripheral or developing regions which are part of its territory, which have no commercial interest but which are of vital importance for the Member State concerned.

(b) An invitation to tender must be launched and published in the Official Journal of the European Communities, to which any interested supplier of ground-handling services may reply.

(c) Suppliers of ground-handling services shall be chosen:

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

- does not provide similar ground-handling services,

and

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

and

- has no involvement in any such undertaking;

(ii) in all other cases, by competent authorities of the Member States which are independent of the managing body of the airport concerned, and which shall first consult the Airport Users' Committee and that managing body.

(d) Suppliers of ground-handling services shall be selected for a maximum period of seven years.

(e) Where a supplier of ground-handling services 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.

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

- if it controls that undertaking directly or indirectly,

or,

- if the undertaking controls it directly or indirectly.

3. The managing body of the airport shall inform the Airport Users' Committee of decisions taken under this Article.

Article 12

Island airports

In the context of the selection of suppliers of ground- handling services at an airport as provided for in Article 11, a Member State may extend the obligation of public service to other airports in that Member State provided:

- those airports are located on islands in the same geographical region,

and

- such airports each have a traffic volume of no less than 100 000 passenger movements per year,

and

- such an extension is approved by the Commission with the assistance of the Committee referred to in Article 10.

Article 13

Consultations

Member States shall see to it that a compulsory consultation procedure relating to the application of this Directive is organized between the managing body of the airport, the Airport Users' Committee and the undertakings providing ground-handling services. This consultation shall cover, inter alia price of those ground-handling services for which an exemption has been granted pursuant to Article 9 (1) (b) and the organization of the provision of those services. Such consultation shall be organized at least once a year.

Article 14

Approval

1. Member States may make the ground-handling activity of a supplier of ground-handling services or a self-handling user at an airport conditional upon obtaining the approval of a public authority independent of the managing body of the airport.

The criteria for such approval must relate to the security and safety of installations, of aircraft, of equipment and of persons, as well as to environmental protection and the relevant social legislation.

The criteria must comply with the following principles:

(a) they must be applied in a non-discriminatory manner to the various suppliers of ground-handling services and airport 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 level below that provided for in this Directive.

These criteria shall be made public and the supplier of ground-handling services or self-handling airport user shall be informed in advance of the procedure for obtaining approval.

2. The approval may be withheld or withdrawn only if the supplier of ground-handling services or self-handling airport user does not meet, for reasons of his own doing, the criteria referred to in paragraph 1.

The grounds for withholding or withdrawal must be communicated to the supplier or user concerned and to the managing body of the airport.

Article 15

Rules of conduct

A Member State may, where appropriate on a proposal from the managing body of the airport:

- prohibit a supplier of ground-handling services or an airport user from supplying ground-handling services or self-handling if that supplier or user fails to comply with the rules imposed upon him to ensure the proper functioning of the airport;

Those rules must comply with the following principles:

(a) they must be applied in a non-discriminatory manner to the various suppliers of ground-handling services and airport 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 level below that provided for in this Directive.

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

Article 16

Access to installations

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

2. The space available for ground-handling at an airport must be divided among the various suppliers of ground- handling services and self-handling airport users, including new entrants in the field, to the extent necessary for the exercise of their rights and to allow effective and fair competition, on the basis of relevant, objective, transparent and non-discriminatory rules and criteria.

3. Where access to airport installations gives rise to the collection of a fee, the latter shall be determined according to relevant, objective, transparent and non-discriminatory criteria.

Article 17

Safety and security

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

Article 18

Social and environmental protection

Without prejudice to the application of this Directive, and subject to the other provisions of Community law, Member States may take the necessary measures to ensure protection of the rights of workers and respect for the environment.

Article 19

Compliance with national provisions

A supplier of ground-handling services at an airport in a Member State shall be required to comply with the provisions of national law which are compatible with Community law.

Article 20

Reciprocity

1. Without prejudice to the international commitments of the Community, whenever it appears that a third country, with respect to access to the ground-handling or self-handling market:

(a) does not, de jure or de facto, grant suppliers of ground-handling services and self-handling airport users from a Member State treatment comparable to that granted by Member States to suppliers of ground-handling services and self-handling airport users from that country;

or

(b) does not, de jure or de facto, grant suppliers of ground-handling services and self-handling airport users from a Member State national treatment;

or,

(c) grants suppliers of ground-handling services and self-handling airport users from other third countries more favourable treatment than suppliers of ground-handling services and self-handling airport users from a Member State;

a Member State may wholly or partially suspend the obligations arising from this Directive in respect of suppliers of ground-handing services and airport users from that third country, in accordance with Community law.

2. The Member State concerned shall inform the Commission of any withdrawal or suspension of rights or obligations.

Article 21

Right of appeal

Member States or, where appropriate, managing bodies of airports shall ensure that any party with a legitimate interest has the right to appeal against the decisions or individual measures taken pursuant to Articles 7 (2) and 11 to 16.

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

Article 22

Information report and revision

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, accompanied by proposals for revision of the Directive, shall be drawn up in the two years following the dates referred to in Article 1.

Article 23

Implementation

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than one year from the date of its publication in the Official Journal of the European Communities. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 24

Entry into force

This Directive shall enter into force an the 20th day following that of its publication in the Official Journal of the European Communities.

Article 25

Addressees

This Directive is addressed to the Member States.

Done at . . .

For the Council

The President

(1) OJ No C 142, 8. 6. 1995, p. 7.

(2) OJ No C 301, 13. 11. 1995, p. 28.

(3) Opinion of the European Parliament of 16 November 1995 (OJ No C 323, 4. 12. 1995, p. 94), common position of the Council of (not yet published in the Official Journal) and Decision of the European Parliament (not yet published in the Official Journal).

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

(5) OJ No L 240, 24. 8. 1992, p. 8. Regulation as amended by the 1994 Act of Accession.

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

(7) OJ No C 309, 5. 11. 1994, p. 2.

(8) OJ No C 56, 6. 3. 1995, p. 28.

ANNEX

LIST OF GROUND-HANDLING SERVICES

1. Ground administration and supervision comprise:

1.1. representation and liaison services with local authorities or any other entity, disbursements on behalf of the airport user and provision of office space for its representatives;

1.2. load control, messaging and telecommunications;

1.3. handling, storage and administration of unit load devices;

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

2. Passenger handling comprises any kind of assistance to arriving, departing, transfer or transit passengers, 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 on to and unloading it from the devices designed to move it from the aircraft to the sorting area and vice versa, as well as transporting baggage from the sorting area to the reclaim area.

4. Freight and mail handling comprise:

4.1. for freight: physical handling of export, transfer and import freight, handling of related documents, customs procedures and implementation of any security procedure agreed between the parties or required by the circumstances;

4.2. for mail: physical handling of incoming and outgoing mail, handling of related documents and implementation of any security procedure agreed between the parties or required by the circumstances.

5. Ramp handling comprises:

5.1. marshalling the aircraft on the ground at arrival and departure (*);

5.2. assistance to aircraft parking and provision of suitable devices (*);

5.3. communication between the aircraft and the air-side supplier of services (*);

5.4. 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, and baggage transport between the aircraft and the terminal;

5.5. the provision and operation of appropriate units for engine starting;

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

5.7. the transport, loading on to and unloading from the aircraft of food and beverages.

6. Aircraft services comprise:

6.1. the external and internal cleaning of the aircraft, and the toilet and water services;

6.2. the cooling and heating of the cabin, the removal of snow and ice, the de-icing of the aircraft;

6.3. the rearrangement of the cabin with suitable cabin equipment, the storage of this equipment.

7. Fuel and oil handling comprises:

7.1. 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;

7.2. the replenishing of oil and other fluids.

8. Aircraft maintenance comprises:

8.1. routine services performed before flight;

8.2. non-routine services requested by the airport user;

8.3. the provision and administration of spare parts and suitable equipment;

8.4. the request for or reservation of a suitable parking and/or hangar space.

9. Flight operations and crew administration comprise:

9.1. preparation of the flight at the departure airport or at any other point;

9.2. in-flight assistance, including re-despatching if needed;

9.3. post-flight activities;

9.4. crew administration.

10. Surface transport comprises:

10.1. the organization and execution of crew, passenger, baggage, freight and mail transport between different terminals of the same airport, but excluding the same transport between the aircraft and any other point within the perimeter of the same airport;

10.2. any special transport requested by the airport user.

11. Catering services comprise:

11.1. liaison with suppliers and administrative management;

11.2. storage of food and beverages and of the equipment needed for their preparation;

11.3. cleaning of this equipment;

11.4. preparation and delivery of equipment as well as of bar and food supplies.

(*) Provided that these services are not provided by the air traffic service.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 10 April 1995 the Commission forwarded to the Council a proposal for a Directive, based on Article 84 (2), of the EC Treaty, on access to the ground-handling market at Community airports (1).

The European Parliament delivered its opinion on 16 November 1995 (2); the opinion of the Economic and Social Committee was delivered on 13 September 1995 (3).

In the light of those opinions the Commission drew up an amended proposal (4).

The Council adopted its common position, in accordance with Article 189c of the Treaty, on 28 March 1996.

II. OBJECTIVE OF THE PROPOSAL

The proposal, which was drawn up further to the Council resolution of 24 October 1994 (5) on the state of civil aviation in Europe and to the Commission communication entitled 'The way forward for civil aviation in Europe`, is designed to open up the ground-handling services market at Community airports and sets out the detailed rules for achieving this.

III. ANALYSIS OF THE COMMON POSITION

The Council has adopted a common position which incorporates some of the European Parliament's proposed amendments. The Council was unable to agree to other amendments proposed by the European Parliament, in particular those likely to hamper the planned market-opening process or considered to be out of place in a Directive on ground-handling.

A point-by-point summary of the situation on each of the European Parliament's proposed amendments to the Commission proposal is given below, together with the Council's amendments to the Commission's original proposal.

1. Amendment 1 - First recital of the Commission proposal

The Council has partially incorporated this amendment into the first recital of its common position by adding '..., as a lasting contribution to promoting economic and social progress`.

2. Amendment 2 - Recital 2

The Council did not agree to this amendment and indeed decided to drop the recital from its common position. This recital, containing a definition of the single market, would add nothing to the common position and would not be matched by anything in the enacting terms of the Directive.

3. Amendments 3 and 4 - Recital 2a (new) (Recital 8a (new))

These fall into the category of amendments considered to be out of place in this Directive (see general commentary on the Council's position); they were not therefore incorporated. Amendments 3 and 4 stated that the Commission should study the Directive's social consequences and airport costs and make the findings of the statistics public.

4. Recitals 4 and 5 of the common position

The Council has reworked the text of these two recitals on the basis of Recitals 5 and 6 of the Commission proposal, keeping the reference to the essential contribution made by ground-handling services to the efficient use of air transport infrastructure and stressing that the opening up of the market will help reduce the operating costs of airline companies and improve the quality of service provided to airport users.

5. Amendment 5 - Recital 8b (new)

The Council accepted the thrust of this amendment; the wording of Recital 8 of the common position is close to that proposed by the European Parliament.

6. Amendment 6 - Recital 9

The Council did not agree to this amendment underlining the airports' responsibility for all decisions, as it appears inconsistent with the process of opening up the market. However, the Council has redrafted Recital 9, phrasing positively the reference to the proposed free access.

7. Amendment 7 - Recital 10

The Council did not incorporate this amendment and saw no need to establish conditions for access to the market. In the common position this recital (Recital 10) has been redrafted; it stresses nevertheless that free access to the ground-handling market must be introduced gradually and be adapted to the requirements of the sector.

8. Amendment 8 - Recital 11

The Council did not accept this amendment, so as not to curb market access. The Council takes the view that the constraints to which the European Parliament refers are not found in all airports and do not apply to all categories of ground-handling services.

9. Recital 12 of the common position

The Council decided to refer to the managing body rather than to the airport authorities.

10. Amendment 9 - Recital 13

The Council rejected this amendment in the interest of preventing abuses in relation to certain services which are difficult to divide. The Council decided to align Recital 13 of its common position on the enacting terms by replacing 'safety` with 'environmental impact`.

11. Recital 14 of the common position

The Council decided to add the words 'relevant, objective, transparent and non-discriminatory` to the end of this recital.

12. Recital 15 of the common position

The Council has added the words 'assisted by an advisory committee` after the reference to exemptions approved by the Commission.

13. Amendment 10 - Recital 16

The Council could not incorporate this amendment, since the selection procedure is to take place only where a Member State limits the number of operators.

In the second sentence of this recital, the Council decided to replace 'users should be involved in the selection` by 'airport users should be consulted when it comes to selecting suppliers`.

14. Recital 17 of the common position

The Council decided to replace 'their participation in the selection of authorized suppliers` by 'their consultation when authorized suppliers . . . are selected` in order to bring the recital into line with the enacting terms (Article 11).

15. Recital 18 of the common position

The Council decided to add this recital, which corresponds to Article 12 of the enacting terms.

16. Amendment 11 - Recital 19

It should be pointed out that the enacting terms of the common position require the managing body of an airport to keep separate accounts for its airport management activities and its supply of ground-handling services rather than to 'unbundle` those activities. The recitals therefore refer to the separation of accounts. The amendment has been incorporated, as the common position extends the separate accounting requirement to all suppliers of ground-handling services to third parties (Recital 21).

17. Recital 20 of the common position

The Council decided to add Recital 20, which corresponds to Article 4 (2) of the enacting terms.

18. Amendment 12 - Recital 21a (new)

This amendment was not accepted by the Council. However, in keeping with Article 18, a new Recital 24 of the common position states that Member States must retain the power to ensure an adequate level of social protection for the staff of undertakings providing ground-handling services.

19. Amendment 13 - Recital 21b (new)

The Council has not incorporated this amendment, since the question of the harmonization of social legislation in the Member States does not belong in this Directive. Recital 22 of the common position however now contains a reference to compliance by airports with 'the social regulations in force`, which also appears in the enacting terms (Articles 14 and 18).

20. Recital 23 of the common position

Recital 21 of the Commission proposal has been adapted to align it with the enacting terms (Articles 15 and 16).

21. Amendment 14 - Recital 22

This amendment was accepted by the Council. The Council also added the following to this recital (25):

'. . . and to permit fair and genuine competition; whereas it must be possible, however, for such access to give rise to the collection of a fee` (Article 16 (3)).

22. Amendment 15 - Recital 23

This amendment was accepted by the Council. The common position provides that, where there is no reciprocity, a Member State may suspend the rights recognized by the Directive in respect of third-country suppliers and users (Recital 26).

23. Recital 27 of the common position

The Council decided to insert this recital on applying the Directive to Gibraltar airport in conformity with Article 1 (5) and (6).

24. Amendment 16 - Article 1 (6)

The Council did not accept this amendment. But by using what was considered to be a more appropriate wording, the idea suggested by the Parliament has been incorporated in the definition of 'managing body` in Article 2 of the common position.

To improve the layout of the enacting terms, Article 1 of the common position concerns the Directive's scope, which was previously covered by Article 2 of the Commission proposal. Article 2 of the common position gives the definitions contained in Article 1 of the Commission proposal.

The Council decided to add the definition of 'airport` and to improve the wording of other definitions, as follows:

- airport system: as taken from Annex II to Regulation No 2408/92;

- self-handling: by adding the following details:

'For the purposes of this definition, among themselves airport users shall not be deemed to be third parties where:

- one holds a majority holding in the other,

or

- a single body has a majority holding in each.`

25. Amendment 37 - Article 2

Article 2 of the proposal has become Article 1 of the common position and concerns the time limits for entry into force and reference thresholds. The Council took an approach involving a gradual opening up, taking account of the size of airports and the categories of services. The arrangements and timetable for opening up the market differ according to whether they concern:

(i) self-handling services - all airports open to commercial traffic will have to open their markets as from 1 January 1998 for all handling services, access to which will be totally free, regardless of their traffic volume. As to the services provided to which the Member State may limit access, the obligation to open the market will not be effective until 1 January 1998 for airports with a traffic volume of more than 1 million passengers or more than 25 000 tonnes of freight;

(ii) handling services for third parties - the opening up of the market will take effect from 1 January 1999 for every Community airport with an annual traffic of 3 million passengers or more (2 million passengers in the case of airports with seasonal and/or tourist traffic). But the opening up of ground-handling markets will not take place until 1 January 2001 in airports with a traffic volume of between 2 and 3 million passengers. In the category of services provided to third parties, there is no longer any distinction between services within the airport terminal and services provided on the runway.

The compromise solution embodied by the common position was discussed at length by the Council's subordinate bodies, the aim being to ensure an appropriate level of opening up following the introduction of the single aviation market in the Community, and also the adoption of the third liberalization package in the field of air transport.

In Article 1 of the common position the Council decided to include two paragraphs (5 and 6) on the application of the Directive to Gibraltar airport.

26. Amendment 17 - Article 3 (1)

This amendment was not taken up by the Council. But in the light of the European Parliament's suggestion, Article 3 (1) of the common position stipulates that, where an airport or airport system is managed and operated not by a single body but by several separate bodies, each of these bodies will be considered part of the managing body of the airport for the purposes of the Directive.

The Council decided to clarify paragraph 3 by stipulating that, if the managing bodies of airports are subject to the supervision or control of a national public authority, that authority will be obliged, in the context of the legal obligations devolving upon it, to ensure that the Directive is applied.

27. Amendments 38 and 18 - Article 4 (2) and (3) respectively

These amendments were taken up by the Council. Article 4 (1) and (2) of the common position provide that the managing body, user or supplier must separate the accounts of the provision of these services from the accounts of their other activities. The common position also provides that an independent examiner will be appointed by the Member State and will check, in particular, on the absence of financial flows between the activity of the managing body as airport authority and its ground-handling activity, as proposed by the European Parliament in these amendments.

28. Amendment 19 - Article 4a (new)

The Council did not accept this amendment, as social questions are covered by Articles 14 and 18 of the common position.

29. Amendment 20 - Article 5

This amendment was not accepted by the Council. The Council preferred a simpler wording for this Article to make the Users' Committee more viable in practice.

30. Amendment 21 - Article 6 (1) and (2), first subparagraph

The Council made provision in Article 6 of the common position for a limit on the number of suppliers for certain categories of services for third parties, i.e. baggage handling, ramp handling, fuel and oil handling and freight and mail handling. The Council decided that Member States would have the option of limiting to a minimum of two the number of authorized suppliers. In this case, as from 1 January 2001, at least one of these suppliers will have to be fully independent both of the managing body and of the dominant airline in the airport concerned. At the request of a Member State, the Commission can grant a further postponement until 31 December 2002 at the latest, in the light of the situation at comparable airports. The Council accepted the three-year period proposed by the European Parliament in amendment 21 to ensure free access to the handling market for third parties, but with the possibility of a one-off extension in duly justified cases.

31. Amendment 22 - Article 7 (2)

In the light of the provisions of Article 1 (1) (a) and (b) of the common position, the Council stipulated a total opening up of self-handling as from 1 January 1998. The Council adopted this amendment as regards the possibility of limiting the pursuit of self-handling to no fewer than two users for the same service categories referred to in Article 6 (2).

32. Amendment 23 - Article 8

The Council broadly endorsed the spirit of paragraph 1 of this amendment concerning centralized infrastructures by laying down criteria in the common position and extending centralization to management. The last part of this amendment concerning the payment of a charge was incorporated in Article 16 (3) on access to installations.

33. Amendment 24 - Article 9

The Council took up paragraph 1 of this amendment by specifying the specific space or available capacity constraints and providing for a ban or limitation to a single user of the pursuit of self-handling for the categories of ground-handling services referred to in Article 7 (2) (Article 9 (1) (c) and (d)). The Council added a paragraph 2 to Article 9 of the common position specifying the criteria to be followed in applying Article 9 (2), taking into account paragraph 2 of this amendment. The Council did not accept paragraph 3 of the amendment because the common practice is to give all parties the option of submitting comments. In Article 9 (4) and (5) of its common position the Council provides for a more stringent procedure as regards the close examination of exemption decisions. With regard to paragraph 6 of the amendment, the Council allowed for possible exemptions from the general rule of three years for the duration of the exemptions. The common position allows exemptions for airports whose ground-handling services for third parties are currently in a monopoly situation (Article 9 (1) (b)). These airports will thus have a further delay of two years, i.e. until 1 January 2001.

After these two years, the Commission, assisted by an advisory committee of Member States' representatives, will give its opinion on the situation and decide whether the exemption needs to be extended by a single period of two years, i.e. until 31 December 2002 at the latest.

34. Article 10 of the common position

The Council decided that this provision should deal with the operation and composition of the advisory committee that will assist the Commission, especially in the application of Article 9 concerning exemptions.

35. Amendment 25 - Article 10 (1)

This amendment was not accepted, since Article 11 of the common position concerning the selection of suppliers lays down a very balanced, transparent and non-discriminatory procedure. It may be noted that in Article 18 of the common position the Council decided that, without prejudice to the application of the Directive, and subject to the other provisions of Community law, Member States could take the necessary measures to ensure protection of the rights of workers and respect for the environment. Also, Article 17 of the common position provides that the provisions of the Directive in no way affect the rights and obligations of Member States in respect of law and order, safety and security at airports.

36. Amendment 26 - Article 11 (1)

The Council did not accept this amendment. Consultations are provided for in Article 13 of the common position and the question of fees is covered by Article 16 (3).

The Council decided that the advisory role of the Users' Committee (Article 11 (1) (c) (ii) of the common position) should be made clearer and that a paragraph 3 should be added stating that the managing body of the airport must inform the Users' Committee of decisions taken under this Article.

35. Article 12 of the common position

To deal with the particular cases of island airports, the Council stipulated in this Article of the common position that, in the context of the selection of suppliers of ground-handling services at an airport as provided for in Article 11, a Member State may extend the obligation of public service to other airports in that Member State provided that:

- those airports are located on islands in the same geographical region,

- such airports each have a traffic volume of no less than 100 000 passenger movements per year,

- such an extension is approved by the Commission with the assistance of the Committee referred to in Article 10.

38. Amendment 27 - Article 12

The Council did not take up this amendment. If provisions going beyond the preservation of security and safety were accepted, this might run the risk of restricting the opening up of the market. However, in its common position (Article 14) the Council stipulated not only that the criteria for approval must comply with the relevant social legislation but also that the grounds for withholding it must be communicated to the supplier or user concerned and to the managing body.

39. Amendment 28 - Article 13 (1), second subparagraph, points (ca), (cb) and (cc) (new)

The Council endorsed the spirit of this amendment in Articles 17, 18 and 19 of the common position.

40. Amendment 29 - Article 14 (3)

A large part of this amendment is incorporated in Article 16 of the common position. As regards consultation of the Users' Committee when fees are set, see the comments on amendment 26.

41. Amendment 30 - Article 15a (new)

The Council did not take up this amendment, which involves very stiff criteria concerning an 'aircraft ground-handler qualification`.

42. Amendment 31 - Article 15b (new)

The Council did not accept this amendment, which it thought might impose unrealistic conditions over and above the safeguards stipulated in the common position with regard to security and safety (Article 17).

43. Amendment 32 - Article 17, first paragraph

The Council did not accept this amendment. But the right to appeal against decisions or individual measures taken pursuant to Articles 7 (2) and 12 to 16 is provided for in Article 21.

44. Amendment 33 - Article 19, first paragraph

In Article 23 of its common position, the Council stipulates that Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive not later than one year from the date of its publication in the Official Journal of the European Communities and that they must immediately inform the Commission. When such measures are adopted they must contain a reference to the Directive or be accompanied by such reference when they are officially published.

45. Amendments 34 and 35 - Articles 19a and 19b (both new)

The Council did not accept these amendments. However, in Article 14 (approval) and Article 18 (social and environmental protection) the common position guarantees that the relevant social legislation will be complied with by the suppliers or users of ground-handling services and allows Member States the option of taking the necessary measures to ensure the protection of workers' rights and respect for the environment.

46. Amendment 36 - Article 19c (new)

This amendment was not accepted by the Council, as the dates specified for an appropriate report proved unrealistic. But Article 22 of the common position stipulates that Member States shall communicate to the Commission the information it requires to draw up a report on the application of the Directive. The report, together with proposals for revising the Directive, will be drawn up within the two years following the dates given in Article 1.

47. Annex

The Annex was drawn up taking account of the definitions applied by international organizations in the civil aviation field and the practices commonly followed at Community airports.

(1) OJ No C 142, 8. 6. 1995, p. 7.

(2) OJ No C 323, 4. 12. 1995, p. 24.

(3) OJ No C 301, 13. 11. 1995, p. 28.

(4) The amended proposal will be forwarded to the Council shortly.

(5) OJ No C 309, 5. 11. 1994, p. 2.