Case C-181/06

Deutsche Lufthansa AG

v

ANA – Aeroportos de Portugal SA

(Reference for a preliminary ruling from the

Tribunal Administrativo e Fiscal do Porto)

(Air transport – Airports – Groundhandling – Levying of a fee for ground administration and supervision)

Opinion of Advocate General Mazák delivered on 19 April 2007

Judgment of the Court (Second Chamber), 5 July 2007

Summary of the Judgment

Transport – Air transport – Access to the groundhandling market at Community airports

(Council Directive 96/67, Art. 16(3) and Annex, point 1)

Community law precludes rules of national law which provide for the payment to the airport managing authority by providers of groundhandling services of a fee for ground administration and supervision, unless the fee for ground administration and supervision provided for by that legislation is payable as the consideration for some or all of the services defined in paragraph 1 of the Annex to Council Directive 96/67 on access to the groundhandling market at Community airports and does not constitute a second charge for services already paid for through another fee or tax. If the examination carried out by the referring court discloses that that fee constitutes a fee for access to the airport installations, it is a matter for that court to ascertain whether the fee at issue meets the criteria of relevance, objectivity, transparency and non-discrimination as specified in Article 16(3) of Directive 96/67.

(see para. 29, operative part)

JUDGMENT OF THE COURT (Second Chamber)

5 July 2007 ( )

(Air transport – Airports – Groundhandling – Levying of a fee for ground administration and supervision)

In Case C‑181/06,

REFERENCE for a preliminary ruling under Article 234 EC, from the Tribunal Administrativo e Fiscal do Porto (Portugal), made by decision of 7 March 2006, received at the Court on 7 April 2006, in the proceedings

Deutsche Lufthansa AG

v

ANA – Aeroportos de Portugal SA,

intervening parties:

Ministério Público,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, P. Kūris (Rapporteur), J. Makarczyk, L. Bay Larsen and J.-C. Bonichot, Judges,

Advocate General: J. Mazák,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 8 February 2007,

after considering the observations submitted on behalf of:

– Deutsche Lufthansa AG, by A. Moura Portugal, advogado,

– the Portuguese Government, by L. Fernandes and M.J. Viegas, acting as Agents,

– the Greek Government, by K. Georgiadis and Z. Chatzipavlou, acting as Agents,

– the Commission of the European Communities, by J.R. Vidal Puig, S. Noe and P. Guerra e Andrade, acting as Agents,

after hearing the Opinion of the Advocate General at the hearing of 19 April 2007

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Articles 6 and 16(3) of Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports (OJ 1996 L 272, p. 36).

2 This reference was made in the course of proceedings between Deutsche Lufthansa AG (‘Lufthansa’) and ANA – Aeroportos de Portugal SA (‘ANA’) concerning a notice, issued by ANA, assessing and levying fees for ground administrative assistance and supervision.

Legal context

Community legislation

3 Article 6(1) of Directive 96/67 is worded as follows:

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

Member States shall have the right to require that suppliers of groundhandling services be established within the Community.’

4 Article 16(3) of that directive states:

‘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.’

5 The Annex to that directive states:

‘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 services before, during or after the flight and any other administrative service requested by the airport user.’

National legislation

6 Decree-Law No 102/90 of 21 March 1990, as amended by Decree-Law No 280/99 of 26 July 1999 (Diário da Republica I, series A, No 172, of 26 July 1999, p. 4678) (‘Decree-Law No 280/99’), details the fees that may be charged for the carrying out of any activities in airport premises. Article 18(2) of that Decree-Law provides that in the public airport sector operated by ANA, the level of the fees for groundhandling is to be set, following prior approval by the National Institute for Civil Aviation, by ANA.

7 Article 3 of Decree No 12/99 of 30 July 1999 (Diário da Republica I, series B, No 176, of 30 July 1999, p. 4922) states:

‘The fees provided for under Article 17 of Decree-Law No 102/90 of 21 March 1990, and for the application of Article 18 of that decree-law, are divided, on the basis of the nature of the services and activities carried out, into:

(a) traffic fees;

(b) groundhandling fees;

(c) occupancy fees;

(d) other commercial fees;

8 The groundhandling fees are provided for in Article 10 et seq. of Decree No 12/99. There are 11 of them.

9 Article 10 of that Decree states:

‘Groundhandling fees shall be payable for the carrying out of any activity forming part of the services specified in the list in Annex I to Decree-Law No 275/99 of 23 July 1999, in accordance with the following conditions:

(1) The ground administration and supervision fee shall be payable by the service providers and shall be calculated by applying a rate relative to the turnover made.

(2) The passenger handling fee shall be payable by the service providers and by airport or self-handling airfield users; it shall be calculated by reference to timetables, or to fractions of days or of months, or to passenger check-ins.

(3) The baggage handling fee shall be payable by service providers and by airport or self-handling airfield users; it shall be calculated by reference to timetables, or to fractions of days or of months, or to passenger check-ins, or per number of items of baggage handled.

(4) The freight and mail handling fee shall be payable:

(a) by airport or self-handling airfield users; it shall be calculated per unit of traffic,

(b) by service providers; it shall be calculated by applying a rate relative to the turnover made.

(5) The ramp handling fee shall be payable:

(a) by airport or self-handling airfield users; it shall be calculated per unit of traffic,

(b) by service providers; it shall be calculated by applying a rate relative to the turnover made.

(6) The aircraft cleaning and servicing fee shall be payable by the service providers and shall be calculated by applying a rate relative to the turnover made.

(7) The fuel and oil handling fee shall be payable by the service providers and shall be calculated by applying a rate relative to the turnover made, or by hectolitre of fuel and litre of oil supplied, in which case figures shall be rounded up.

(8) The aircraft maintenance fee shall be payable by the service providers and shall be calculated by applying a rate relative to the turnover made.

(9) The flight operations and crew administration fee shall be payable by the service providers and shall be calculated by applying a rate relative to the turnover made.

(10) The surface transport fee shall be payable by the service providers and shall be calculated by applying a rate relative to the turnover made.

(11) The catering fee shall be payable by the service providers and shall be calculated by applying a rate relative to the turnover made.’

10 Article 11 of that Decree provides:

‘According to the period of use, the administrative unit or the physical unit handled, a different fee may be collected from users of any airport or centralised airfield infrastructure, for the carrying out of groundhandling activities.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

11 Lufthansa, a company governed by German law, a branch of which has its head office at Lisbon airport (Portugal), brought legal proceedings against the notice, issued by ANA, assessing and levying fees for ground administration and supervision.

12 ANA granted Lufthansa a licence to carry out groundhandling activities at the Oporto Francisco Sá Carneiro Airport. As a result, Lufthansa was subject to payment of a fee, including value added tax, totalling PTE 22 164 (EUR 110.55).

13 Lufthansa claims before the national court that the relevant provisions of national law – Article 10(1) of Decree No 12/99 and Article 18(2) of Decree-Law No 280/99 – infringe Directive 96/67.

14 The Tribunal Administrativo e Fiscal do Porto (Oporto Administrative and Customs Court) (Portugal) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) May the sum demanded by way of fees for administrative assistance and supervision, in accordance with Article 10(1) of Decree No 12/99 of 30 July 1999, be regarded as a fee having been “determined according to relevant, objective, transparent and non-discriminatory criteria”, as required by Article 16(3) of Directive 96/67?

(2) Is it in conflict, or incompatible, with the free access to the market for the provision of groundhandling services to third parties provided for by Article 6 of Council Directive 96/97, for payment to be required of a sum by way of fees for administrative assistance and supervision, in accordance with Article 10(1) of Decree No 12/99 of 30 July 1999 and Article 18(2) of Decree-Law No 102/90 of 21 March 1990, as amended by Decree-Law No 280/99 of 26 July 1999, and other provisions fixing the amount of that sum?

(3) Is it in conflict, or incompatible, with the completion of the internal market and the principles laid down in Articles 3(c) EC and 4 EC, for payment to be required of a sum by way of fees for administrative assistance and supervision, in accordance with Article 10(1) of Decree No 12/99 of 30 July 1999 and Article 18(2) of Decree-Law No 102/90 of 21 March 1990, as amended by Decree-Law No 280/99 of 26 July 1999, and other provisions fixing the amount of that sum?

(4) May requiring payment of a sum by way of fees for administrative assistance and supervision, in accordance with Article 10(1) of Decree No 12/99 of 30 July 1999 and Article 18(2) of Decree-Law No 102/90 of 21 March 1990, as amended by Decree-Law No 280/99 of 26 July 1999, and other provisions fixing the amount of that sum, be regarded as abuse within the meaning of Article 82 EC?

The questions referred for a preliminary ruling

15 At the outset it should be noted that from 1 January 1999, as provided for in Article 1(1)(c) and (2) of Directive 96/67, only 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 – are subject to that directive. From 1 January 2001 the directive applies to any airport, located in the territory of a Member State, and open to commercial traffic, whose annual traffic is not less than 2 million passenger movements or 50 000 tonnes of freight.

16 However, it is not clear from the facts put forward by the referring Court that Oporto airport had reached the abovementioned thresholds before 2005. If this was not the case, that airport would only fall within the scope of Directive 96/67 from 1 January 2006. However, the notice assessing fees, which is contested by Lufthansa, seems to concern the year 2000.

17 It is for the referring court, therefore, first to ensure that Directive 96/67 is applicable to the facts of the dispute in the main proceedings.

The first and second questions

18 By its first and second questions, which it is appropriate to examine together, the referring court essentially asks if Articles 6 and 16(3) of Directive 96/67 preclude national legislation, such as that at issue in the main proceedings, which provides for the payment to the airport managing authority by providers of groundhandling services of a fee for ground administration and supervision.

19 The Court has held that it follows, both from recital 25 of Directive 96/67 and from Article 16(1) and (3) of that directive, that the airport managing authority is authorised to collect a fee in return for granting access to airport installations. Those installations must be taken to mean the infrastructure and equipment made available by the airport. By contrast, the Court has held that the airport managing authority had no right to charge an access fee to the groundhandling market in addition to the fee for use of the airport installations (see, to that effect, Case C-363/01 Flughafen Hannover-Langenhagen [2003] ECR I-11893, paragraphs 37 to 40, 44 and 60).

20 Firstly, it is necessary to examine whether a fee, such as the fee charged for ground administration and supervision at issue in the main proceedings, should be considered as a fee payable in return for access to airport installations.

21 The Portuguese Government submits that the fee in question is levied in return for the provision of a public airport service in support of civil aviation and for making available property in the public domain, which ANA must ensure is in good condition for use.

22 At the hearing, the Portuguese authorities stated, on the one hand, that the ground administration and supervision fee provided for by Decree No 12/99 was no different from the fee mentioned in the Annex to Directive 96/67 and in no way constituted a second charge for services on which a fee provided for by that same decree has already been levied.

23 On the other hand, those authorities mentioned, for the first time, that effective use of the public area must mean water and electricity consumption, as well as the cost of cleaning, and safety and security measures.

24 In this context, it is a matter for the referring court to examine the consideration for the fee at issue in the main proceedings in light of the definition of ground administration and supervision in paragraph 1 of the Annex to Directive 96/67. Thereafter, if that fee is payable for some or all of those services and is not a second charge on services already paid for by another fee or charge, it may be considered as a fee for access to airport installations and not as a fee for access to the groundhandling market.

25 In any case, it is necessary, secondly, to examine whether the fee at issue in the main proceedings meets the criteria specified in Article 16(3) of Directive 96/67.

26 As regards the criteria of relevance and objectivity, it is for the referring court to examine the link between the running costs incurred by ANA and the level of the fee calculated as a percentage of the turnover made by Lufthansa at the Oporto Francisco Sá Carneiro airport.

27 As regards the criterion of transparency, that can be considered as satisfied only if the national law contains a clear exposition of the services provided by ANA and a precise definition of the method of calculating the relevant fee.

28 Finally, as regards the criterion of non-discrimination, while it is common ground that the fee at issue in the main proceedings is payable only by the providers of groundhandling, even though the self-handling users make use of the same airport installations as those providers, it is also clear that if the only justification for that difference in treatment lies in the fact that only those service providers make a profit, then that difference must be regarded as discriminatory.

29 It follows from the foregoing that the reply to the first and second questions must be that Community law precludes rules of national law such as those provided for by Article 10(1) of Decree No 12/99 and Article 18(2) of Decree-Law No 280/99, unless the fee for ground administration and supervision provided for by that legislation is payable as the consideration for some or all of the services defined in paragraph 1 of the Annex to Directive 96/67 and does not constitute a second charge for services already paid for through another fee or tax. If the examination carried out by the referring court discloses that the fee at issue in the main proceedings constitutes a fee for access to the airport installations, it is a matter for that court to ascertain whether the fee at issue meets the criteria of relevance, objectivity, transparency and non-discrimination as specified in Article 16(3) of Directive 96/67.

The third question

30 By its third question, the referring court essentially asks whether the payment of the fee at issue in the main proceedings is contrary to Articles 3 and 4 EC.

31 It is sufficient to state that Articles 3 and 4 EC specify the fields and objectives to which the activities of the European Community are to relate, and do not lay down obligations on Member States or public or private bodies (see, to that effect, Case C-9/99 Échirolles Distribution [2000] ECR I-8207, paragraph 22). Since those activities have been detailed in other parts of the EC Treaty and in Community implementing acts such as Directive 96/67, it is necessary to reply to the referring court only with regard to that directive.

The fourth question

32 By its fourth question, the referring court essentially asks whether the fact of demanding payment of the fee at issue in the main proceedings can be considered as an abuse of a dominant position within the meaning of Article 82 EC.

33 According to settled case-law, references for a preliminary ruling must indicate the precise reasons which caused the referring court to question itself as to the interpretation of Community law and to consider that it was necessary to refer questions to the Court for a preliminary ruling (see the order in Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 16 and the case-law cited, as well as Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20). Thus, the Court has held that it is essential that the national court should give, at the very least, some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and on the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (order in Case C-167/94 Grau Gomis and Others [1995] ECR I-1023, paragraph 9).

34 It must be stated that the reference for a preliminary ruling does not meet those requirements.

35 It is not possible to delimit the specific problem of interpretation which might be raised in relation to Article 82 EC. The need for precision with regard to the factual and legislative context applies especially in the area of competition, which is characterised by complex factual and legal situations (Laguillaumie, paragraph 19, and case-law cited).

36 It follows that the fourth question referred to the Court is inadmissible.

Costs

37 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

Community law precludes rules of national law such as those provided for by Article 10(1) of Decree No 12/99, of 30 July 1999, and Article 18(2) of Decree-Law No 120/90 of 21 March 1990, as amended by Decree-Law No 280/99 of 26 July 1999, unless the fee for ground administration and supervision provided for by that legislation is payable as the consideration for some or all of the services defined in paragraph 1 of the Annex to Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports and does not constitute a second charge for services already paid for through another fee or tax. If the examination carried out by the referring court discloses that the fee at issue in the main proceedings constitutes a fee for access to the airport installations, it is a matter for that court to ascertain whether the fee at issue meets the criteria of relevance, objectivity, transparency and non-discrimination as specified in Article 16(3) of Directive 96/67.

[Signatures]