Keywords

Summary



Keywords

1. Competition - Transport - Rules on competition - Air transport - Regulation No 3975/87 - Scope - Activities directly relating to the provision of air transport services - Included - Airport management activity - Excluded

(Council Regulations Nos 17, 141 and 3975/87)

2. Competition - Community rules - Undertaking - Concept - Public corporation managing airport facilities on publicly-owned property

(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC))

3. Competition - Dominant position - Concept - Dominant position facilitated by laws or regulations

(EC Treaty, Art. 86 (now Art. 82 EC))

4. Competition - Dominant position - Conduct on the dominated market having effects on a closely related market - Application of Article 86 of the Treaty (now Article 82 EC) - Conditions

(EC Treaty, Art. 86 (now Art. 82 EC))

5. Competition - Dominant position - Abuse - Concept - Absence of fault

(EC Treaty, Art. 86 (now Art. 82 EC))

6. Competition - Undertakings responsible for the management of services in the general economic interest - Subjection to the rules of the Treaty - Derogation - Strict interpretation - Cumulative conditions

(EC Treaty, Art. 90(2) (now Art. 86(2) EC))

Summary

1. Regulation No 3975/87 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector, which is specific in nature, applies only to activities directly relating to the supply of air transport services. Activities that do not directly relate to such services fall within the scope of Regulation No 17, which is general in nature.

In that regard, airport management activities which do not consist in providing groundhandling services but are situated in the market upstream of that activity, namely the provision to suppliers of groundhandling services of airport infrastructures and management services, have only an indirect link with air transport, since they constitute neither transport services nor even activities directly relating to the supply of air transport services.

( see paras 43, 46 )

2. Under Community competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed, so that any activity consisting in offering goods and services on a given market is an economic activity.

Furthermore, the Treaty provisions on competition are applicable to the activities of an entity which can be severed from those in which it engages as a public authority. It follows that the fact that a public corporation placed under the authority of the Minister and that it manages facilities in public ownership does not in itself mean that it cannot be regarded as an undertaking for the purposes of Article 86 of the Treaty (now Article 82 EC).

The provision of airport facilities to airlines and the various service providers by a public corporation, in return for a fee at a rate freely fixed by the latter, and the management of those facilities are economic activities, and although those activities are carried out on publicly-owned property, they do not for that reason form part of the exercise of a task conferred by public law.

( see paras 107-109, 121-122, 125 )

3. The dominant position referred to in Article 86 of the Treaty (now Article 82 EC) relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of consumers. The application of Article 86 is not precluded by the fact that the absence or restriction of competition is facilitated by laws and regulations.

( see paras 147-148 )

4. An abuse of a dominant position on one market may be censured because of effects which it produces on another market. It is only in the different situation where the abuse is found on a market other than the dominated market that, according to Case C-333/94 P Tetra Pak v Commission, Article 86 of the Treaty (now Article 82 EC) is inapplicable except in special circumstances.

Thus, where the undertaking in receipt of the service is on a separate market from that on which the person supplying the service is present, the conditions for the applicability of Article 86 are satisfied provided that, owing to the dominant position occupied by the supplier, the recipient is in a situation of economic dependence vis-à-vis the latter, without their necessarily having to be present on the same market. It is sufficient if the service offered by the supplier is necessary to the exercise by the recipient of its own activity.

( see paras 164-165 )

5. The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market. Similarly, the strengthening of the position of an undertaking may be an abuse and prohibited under Article 86 of the Treaty (now Article 82 EC), regardless of the means and procedure by which it is achieved, and even irrespective of any fault.

( see para. 170 )

6. The derogation set out in Article 90(2) of the Treaty (now Article 86(2) EC) from the rules on competition is to be given a strict interpretation and can apply only on the double condition, first, that the undertaking has been entrusted by the public authorities with the operation of a service of general economic interest and, second, that the application of the rules of the Treaty obstructs the performance of the particular task assigned to that undertaking and that the interests of the Community are not affected.

( see para. 227 )