OPINION OF ADVOCATE GENERAL

Mazák

delivered on 19 April 2007 ( )

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 (Portugal))

(Air transport – Access to the groundhandling market in Community airports – Directive 96/67/EC – Article 6 – Article 16(3) – Charging of a fee for access to a groundhandling assistance and supervision market)

1. This case concerns air transport, namely fees regarding access to the groundhandling market in Community airports – in particular the ‘fee for administrative assistance and supervision’. Groundhandling basically refers to services provided at an airport to aircraft, passengers and cargo. The Court is essentially asked to rule on whether such a fee, as fixed by national law, may be regarded as determined on the basis of the relevant, objective, transparent and non-discriminatory criteria – as required by Community legislation – and whether or not such an imposition is contrary to free access to the groundhandling market.

I – Legal framework

A – Community legislation

2. The fourth and fifth recitals in the preamble to Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports ( ) (‘the Directive’) respectively provide that: ‘groundhandling services are essential to the proper functioning of air transport’ and ‘the opening-up of access to the groundhandling market should help reduce the operating costs of airline companies and improve the quality of service provided to airport users’.

3. Further to the ninth recital of the Directive, ‘free access to the groundhandling market is consistent with the efficient operation of Community airports’.

4. The 25th recital to the preamble of the Directive states that: ‘… access to airport installations must be guaranteed to suppliers authorised to provide groundhandling services and to airport users authorised to self-handle, to the extent necessary for them to exercise their rights and to permit fair and genuine competition; … it must be possible however, for such access to give rise to the collection of a fee’, ( )

5. Article 6 of the Directive, entitled ‘Groundhandling for third parties’ states as follows:

‘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 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.’

6. Then Article 16 of the Directive on ‘Access to installations’ reads:

‘1. Member States shall take the necessary measures to ensure that suppliers of groundhandling 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 any 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 groundhandling at an airport must be divided among the various suppliers of groundhandling 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 the 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.’

7. At the time of the directive’s adoption, the Commission had the following statement included in the minutes relating to Article 16(3)’s application:

‘The Commission states that Article 16(3) recognises an airport is right to collect a fee from suppliers of groundhandling services and self-handling users for access to its installations.

The Commission states that such a fee may be construed as a commercial charge and may in particular contribute to the self-financing of the airport in so far as it is determined on the basis of relevant, objective, transparent and non-discriminatory criteria.’

B – National legislation

8. In Portugal, Directive 96/67 was transposed inter alia by Decree-Law No 275/99 of 23 July 1999, ( ) whilst the airport fees pertaining to this case were defined by way of Decree No 12/99 of 30 July 1999. ( ) The groundhandling fees set out in that latter Decree number 11 in total. As regards the first of these fees, it is essentially stipulated therein that an administrative assistance and supervision fee is paid by the suppliers of services and is defined by way of a percentage of his turnover. ( )

II – Factual and procedural background and the questions referred

9. According to the order for reference, Deutsche Lufthansa Aktiengesellschaft (‘Lufthansa’), the applicant in the main proceedings, a company formed under German law, having a branch with its seat at Lisbon airport, Portugal, has brought legal proceedings in which it challenges the order assessing and levying fees for administrative assistance and supervision made by ANA – Aeroportos de Portugal, SA (‘ANA’, ‘the airport managing body’ or ‘the AMB’), the defendant in the main proceedings.

10. ANA granted Lufthansa a licence to carry on groundhandling activity at Porto’s Francisco Sá Carneiro Airport. The disputed fee for the provision of administrative assistance and supervision to third parties at the airport (‘the fee in question’) that was levied on Lufthansa came to PTE 18 944, together with VAT at 17% in the sum of PTE 3 220, making a total of PTE 22 164 (EUR 110.55). That fee was assessed in accordance with the provisions of Article 10(1) of Decree No 12/99. The amount of the fee in question that Lufthansa was required to pay during the year 2000 was assessed as 3.5% of its global groundhandling turnover achieved at the Porto airport.

11. Lufthansa argues in the main proceedings that the provisions of domestic law which were the basis for the order assessing and levying that fee, that is to say, Article 10(1) of Decree No 12/99 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, are contrary to Directive 96/67, and more particularly to Articles 6 and 16(3) thereof.

12. According to the national court, having regard to the amounts involved in this action, in accordance with Article 280(4) of the CPPT (Tax Procedure Code) there is no judicial remedy in respect of the decision to be given. Thus, in accordance with the third paragraph of Article 234 EC, reference must be made for a preliminary ruling on the compatibility with Community law of the provisions at issue.

13. By order of 7 March 2003, the Tribunal Administrativo e Fiscal do Porto, Tribunal Tributário de Primeira Instãncia do Porto (Portugal) stayed the proceedings and submitted a reference to the Court for a preliminary ruling on the following questions:

‘1. May the sum demanded by way of charges 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 of the Council of the European Union of 15 October 1996?

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 96/67 [of 15 October 1996], for payment to be required of a sum by way of charges 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[1](c) and 4 of the EC Treaty, for payment to be required of a sum by way of charges 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 charges 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 of the EC Treaty?’

14. Written observations have been submitted by Lufthansa, the Portuguese Government and the Greek Government and also by the Commission. All these parties also submitted observations at the oral hearing, which took place on 8 February 2007.

III – Assessment

15. To begin with, I note as a preliminary point that the order for reference is not clear about the relevant time frame pertaining to the case in the main proceedings. This is, however, pertinent for assessing whether or not the facts of the case fall within the scope of Directive 96/67 at all: in other words, whether at the time Porto airport actually qualified under the thresholds (as to the annual volume of traffic) provided for in Article 1 of the directive. The Commission points out that this was the case only as from 1 January 2006. In any event, I will give the following Opinion subject to the proviso that the directive is applicable.

16. As I will explain below, the present case essentially begs the question whether the fee for administrative assistance and supervision is to be regarded as a ‘fee for access to installations’ and – if the answer is in the affirmative – whether it actually fulfils the criteria laid down in Article 16(3) of the Directive. The purpose of these criteria is also that the national provisions transposing the relevant Community legislation, and also any decisions imposing such fees, may be examined by way of judicial review and such a purpose should be fulfilled in a concrete manner.

A – The first three questions

17. By its first three questions, which I shall answer together, the national court asks essentially whether fees for administrative assistance and supervision as provided for by 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, are compatible with Directive 96/67, in particular Articles 6 and 16(3) thereof, and with Articles 3(1)(c) EC and 4 EC.

1. Main submissions of the parties

18. Lufthansa argues in essence that the first question ought to be answered in the negative, since the fee in question cannot be considered to be a fee for access to airport installations as provided for by the directive, which is the only fee allowed by the Court’s case-law. ( ) And even if it were such a fee, which Lufthansa admits only as a hypothesis, Lufthansa contends that the fee does not meet the criteria laid down in Article 16(3) of Directive 96/67. Not least, in view of the fact that only suppliers are subject to the fee in question, whilst self-handlers are not, as well as the fact that the amount of the fee is fixed by way of a percentage of one’s turnover. ( )

19. The Portuguese Government argues essentially that the fee in question does meet the criteria set out in Article 16(3) of the Directive and corresponds to compensation for the provision of public airport service and for the use of a good belonging to the public domain. ANA has to guarantee that the latter is in a proper state and maintained in such condition as to allow Lufthansa to pursue its activity and therefore ANA requires it to pay in return the corresponding fee for administrative assistance and supervision. Moreover, the percentage of the turnover achieved satisfies the requirement of proportionality. With a view to Article 6, the Portuguese Government essentially submits that the liberalisation of the market does not mean that the market should be accessible without charge and that it is none the less open to all interested providers who are capable of duly exercising activities on the administrative assistance and supervision market. Lufthansa bases its arguments on the ninth and the 25th recitals of the Directive and contends in essence that this question must be answered in the affirmative.

20. The Greek Government argues that the fee in question reflects the administrative cost of handling an application of a supplier or self-handler so as to be accepted in the groundhandling market at the airport, which differs from a fee for access to the market (as consideration for the grant of commercial opportunity) prohibited by the Court in Flughafen Hannover-Langenhagen. ( ) Lastly, the Greek Government argues that the fee in question is justified on the basis of the obligation to provide continuous monitoring and supervision of the conformity of services offered.

21. As for the Commission, it argues that Article 6(1) of the Directive precludes airport managing bodies from requiring from suppliers payment of a fee which does not constitute a fee for the use of airport installations. In any event, together with the Greek Government, it considers that there is a lack of clarity as to what services are actually included in the fee in question and also as regards the method of calculation. On the other hand, AMBs are entitled to collect a fee for the use of airport installations, provided that it meets the criteria set out in Article 16(3) of the Directive.

2. Appraisal

22. Article 6 of the Directive lays down in general terms the principle of free access by suppliers to the market for the provision of groundhandling services to third parties. Article 16 of the Directive contains the specific provisions relating to the conditions under which suppliers must have access to installations, stating in particular that ‘[w]here 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’.

23. In that regard, the Court has already held in Flughafen Hannover-Langenhagen that it follows that an AMB is indeed entitled to collect a fee for the use of airport installations, of an amount, to be determined according to the criteria laid down in Article 16(3) of the Directive, which takes account of the interest of that body in making a profit. The Court stated, by contrast, that the directive does not allow for the possibility of collecting an access fee for the grant of a commercial opportunity in addition to the fee payable for the use of airport installations. ( )

24. It may be added that the Court stated in that judgment that ‘[t]he reference to installations clearly relates to the infrastructure and the equipment made available by the airport’. This should to my mind, however, not be read too strictly as meaning that such a fee could be levied only for the use of physical installations. Rather, the concept of ‘access to airport installations’ should in my view be understood as covering services provided by the AMB related to the use of such installations, as well. ( )

25. It should thus be examined, next, whether the fee in question is to be regarded as such a fee for access to installations as envisaged by that judgment.

26. In this context, the Portuguese Government submits in essence that the fee in question corresponds to compensation for the provision of the public airport service (which supports civil aviation) and for the use of a good belonging to the public domain and therefore compensation for making available the general installations, such as cleaning, lighting, maintenance, security and so forth, whilst also allowing the government to develop the groundhandling activities.

27. Lufthansa, on the other hand, argues that the provision of administrative assistance and supervision requires neither use of airport installations nor provision of services by the AMB and that the fee in question is in fact not related to airport installations. This follows from the legal regime itself, since the fee applies only to suppliers and does not apply to the other users. However, both of these user categories use the installations. This therefore confirms that the fee in question cannot be payable for airport installations. Instead, Lufthansa considers that the fee is levied, rather, for the possibility to realise a profit and therefore the situation of the case in the main proceedings is the same as in Flughafen Hannover-Langenhagen, where such a fee was prohibited. ( )

28. Finally, the Commission contends that the providers of groundhandling services are already subject to several partial fees for use of installations they require to conduct their business (which also need to be maintained and in good order) and that the fee for administrative assistance and supervision therefore appears to be for the very existence of the airport and the providers have to pay for it as a whole, which amounts to a double charge.

29. As I have stated above, in order for a fee to be able to be collected under Article 16(3) of the Directive, it must be charged for the use of airport installations and not by way of a general fee for access or a kind of ‘concession fee’. In so far as the Portuguese Government contends that the fee is paid for the provision of public airport service and for the use of a good belonging to the public domain, I must say that these services rendered in return appear to me quite general and remote from the actual use of airport installations, so that the fee actually amounts in my view to an access fee which is paid as consideration for the grant of a commercial opportunity. ( ) Moreover, to my mind the calculation of the fee in question fails somewhat to support the conclusion that it is paid as consideration for the use of airport installations, since it is assessed as a fixed percentage of the global groundhandling turnover at the airport. Also, the reference by the referring court to ‘administrative assistance and supervision’ does not permit the definitive conclusion that the fee in question is paid for the use of airport installations.

30. Although I would therefore suggest that a fee like the one in question is not paid for the use of airport installations within the meaning of Article 16(3) of the Directive and is therefore not compatible with it, it would, in the absence of more concrete information available to the Court, be ultimately for the national court to establish whether that is the case.

31. In any event, in order to be compatible with Directive 96/67, the fee in question would also have to comply with the condition that it is determined according to relevant objective, transparent and non-discriminatory criteria, as provided for by Article 16(3) of the Directive, which I will examine in the following paragraphs.

a) Non-discrimination

32. Starting with the non-discrimination requirement established therein, I am of the opinion that prima facie the fee in question appears to fail this test since it is common ground between the parties that it is only imposed on suppliers, whilst leaving self-handlers exempt. Moreover, the documents before the Court do not suggest that self-handlers are subjected to a comparable fee. I see no objective justification for this unequal treatment and none was presented in the written observations either.

33. The point of departure here is that, in my view, the situation of Lufthansa (and that of all the other suppliers for that matter), on the one hand, and that of self-handlers, on the other, is for the purposes of the present analysis regarding access to airport installations legally as well as factually comparable. As both Lufthansa and the Commission confirm, both suppliers and self-handlers use the airport’s installations.

34. Such different treatment would have to be objectively justified. However, this follows neither from (i) the national legislation; nor from (ii) the arguments of the parties or the interveners; and (iii) neither have I been able to ascertain any objective reasons for this different treatment. Having regard to the settled case-law regarding the principle of non-discrimination, I note that comparable situations must not be treated differently and different situations must not be treated in the same way. ( )

35. Nonetheless, at the hearing the Portuguese Government did explain that self-handlers are not subject to the fee in question, because there is in fact already another fee levied on them (which it referred to as the ‘air traffic fee’). A self-handler being an air operator (or carrier) that provides the groundhandling activities on its own behalf, the Portuguese Government adds that such a fee is always levied on air operators (who thus pay for the existence, maintenance and use of airport infrastructure). It contends that by way of this fee the same services as those pertaining to the fee in question are covered, hence self-handlers ought to be exempt from the latter, as otherwise they would face double imposition.

36. However, in my view this point is argued in somewhat too general terms and I must admit that I am not convinced that it should be sufficient to refute the apparent discrimination between the two categories of users. Whilst it is still unclear what specific services are covered by either of these two fees, and whether they are indeed identical, it is also far from transparent how their respective amounts are calculated and how they reflect the relevant costs, and, consequently, to what extent they are comparable.

b) Relevance

37. At the outset, I must observe that I take issue with the fact that the relevant national provision, namely Article 10(1) of Decree No 12/99, makes no mention at all of the actual content of the fee in question.

38. What is more, as I will explain below, for the purposes of remedying this problem – that is to say, in order to ascertain what specific services are covered by the fee and to what extent they may be characterised as meeting the relevance criterion in Article 16(3) of the Directive – the written as well as the oral observations of the Portuguese Government also appear to me inconclusive and opaque.

39. In order to meet the relevant criteria, the fee must be linked to the costs incurred by the AMB in making available those installations which it needs to provide to the suppliers and self-handlers. ( ) Indeed, I share the approach taken by Advocate General Léger in his Opinion in the Commission v Germany case, ( ) that in determining the amount of the fee, it is essential that the criterion of relevance is complied with so as to ensure that the fee is actually charged in consideration of access to airport installations. To allow the fee to include costs unconnected with the cost to the AMB of granting access to its infrastructures (the latter being, for instance, the cost of maintaining the infrastructures, as argued by the Portuguese Government in the present case) could lead to the fee being converted into a disguised fee for access to the market, contrary to Article 16(3), as interpreted by the Court in Flughafen Hannover-Langenhagen. ( )

40. Indeed, I find that AMBs must be precluded from charging a kind of ‘concession fee’ on the ground that groundhandling services have been liberalised throughout the Community, since this would clearly run counter to Directive 96/67 as well as to the Court’s interpretation thereof. Therefore, I agree with the view that airports should not be allowed to charge fees which are not cost-related and which instead take on a form of a royalty of sorts. Moreover, as has been pointed out, the regime introduced by the directive is meant to provide for free access to the groundhandling market whilst being conducive to actually reducing airline companies’ costs, rather than the opposite.

41. My response to the following lateral argument of the Portuguese Government could well come under the first, second or third subheading of my Opinion – that is to say under (a) non-discrimination, (b) relevance or (c) objectivity respectively.

42. This Government claims that it establishes a difference in treatment between users and providers at the airport because it believes that such a difference actually exists, pointing to one of the directive’s principal objectives as being to reduce air operators’ (or carriers’) costs, which could be achieved by inter alia increasing the number of service providers on the market. Then, however, it adds that Lufthansa has no legal basis to which to refer in its arguments, since nowhere does the directive say that it was to reduce the costs of groundhandling providers, as there has never been an aim to reduce their costs, as well.

43. I cannot concur with such an interpretation.

44. The objective of Directive 96/67 was to gradually open the groundhandling services market in the Community to competition, thus complementing the third stage in the liberalisation of access to the EC air transport market. This is naturally conducive to making both the groundhandling market and the actors therein per se more efficient. Surely singling out groundhandling providers – in that their costs ‘have never been meant to be reduced’ (especially those that are not justified, may I add) – seems to go against the general aim of the directive. After all, the criteria laid down in Article 16(3), with which I am dealing at some length here, specifically play a role in allowing free access to the market by providers and ensuring that the air transport infrastructure is used efficiently.

45. To my mind, the fee in question would qualify as being relevant provided, for instance, that the AMB were to collect it in return for administrative costs related to the processing of applications submitted by prospective suppliers, as is essentially argued by the Greek Government. This, however, is apparently not the case. Moreover, Lufthansa adds that instead there are three other such administrative fees levied by the National Institute of Civil Aviation: (i) one, for obtaining the licence; (ii) another for the issue of the licence; and (iii) a third fee, for any modification of the licence.

46. Therefore, first, I do not see how the fee in question can be considered to be determined on the basis of relevant criteria when it is not cost-related – that is to say, based on costs incurred by the AMB – and, secondly, when it is determined by way of a percentage (3.5%) of the supplier’s turnover which can be likened to a tax and rather resembles the situation in Flughafen Hannover-Langenhagen ( ) where the fee was based on the opportunity for profit arising from access to the market for groundhandling services and forbidden by the Court. I note that the Portuguese Government has been unable to explain to a sufficient degree how that particular percentage was arrived at and why it should not be regarded as arbitrary.

47. Having regard to the information before the Court, such a criterion does not strike me as relevant.

c) Objectivity

48. Furthermore, the assessment in the above paragraphs as to whether or not the fee in question and the way in which it is set (at 3.5% of a supplier’s turnover) may be considered a relevant criterion may well apply mutatis mutandis to its objectivity too.

49. In order to be objective, the fee in question would have to be based on the relevant installations and their nature as well as on the actual use that the provider made of them.

50. Moreover, I agree with Lufthansa that the fact that the percentage used to determine the amount of the fee in question is calculated on its global groundhandling turnover – that is to say, that it actually includes all groundhandling services – does not come across as objective either, unless it is duly justified by the AMB.

51. Indeed, I have no knowledge of any document or element indicating how the amount of the fee is set and am therefore unable to conclude that it is linked to any cost borne by the AMB. Rather, as mentioned above, it could well be interpreted as reflecting a revenue that the latter wants to achieve.

52. Therefore, as regards the requirement that the fee be determined according to relevant and objective criteria, it is clear from the foregoing that the fee in question is payable merely as a percentage of the user’s turnover and bears no relation to, nor does it reflect, the AMB’s actual costs linked with the provision of the administrative assistance and supervision. Here, too, I must conclude that the fee in question does not seem to fulfil the criteria set out in Article 16(3) of the Directive.

d) Transparency

53. The fee in question may be characterised as transparent on condition that there is a transparent relationship between the way in which the amount of the fee is fixed (that is to say, the 3.5% of Lufthansa’s groundhandling turnover) and the actual services provided for which it is payable.

54. With regard to the transparency of the establishment of the fee, not only do the national provisions fail to specify what actual services it is to be levied for, but the Portuguese Government did not provide a very conclusive answer on this point either. When asked to shed light on what these services are in fact, the Portuguese Government merely explained that the fee corresponds to a quid pro quo for the airport’s general installations being made available, such as cleaning, lighting, maintenance, security and so forth.

55. What is more, Lufthansa argues that the AMB has not furnished it with the slightest public clarifications as to the collection of the fee in question and its calculation, despite the fact that the Airport Users Committee issued successive negative opinions on the subject. Lufthansa also adds that it does not know what the destination of these proceeds is so as to conclude on its justifiability, let alone its legality.

56. In that case, in my view the relationship between the relevant services and the way of calculation is not obvious and transparent at all. Moreover, the hearing did not clarify this issue either.

57. In the light of all the foregoing, I take the view that a fee like that described by the referring court is not compatible with the directive, in particular Articles 6 and 16(3) thereof, since it is not established that it constitutes a fee paid in consideration of the use of airport installations and that it is determined according to relevant, objective, transparent and non-discriminatory criteria. It is, however, for the referring court, which, unlike the Court of Justice in the present case, has all the relevant facts before it, to establish whether, on the facts, the fee in question satisfies the various criteria mentioned.

58. As far as the reference by the referring court to Articles 3(1)(c) EC and 4 EC is concerned, it suffices to recall that according to consistent case-law these articles do not lay down a complete and fully-fledged set of substantive rules but simply set out general objectives that the Community and the Member States must attain. ( ) They can therefore be used for interpretative purposes in conjunction with other provisions implementing their content, but cannot as such call into question the payment of the fee in question.

59. I therefore propose to answer to the first three questions by stating that fees like the fee for administrative assistance and supervision as provided for by 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, are, in so far as they are paid as general access fees rather than specifically in consideration of the use of airport installations, and in so far as they are not determined according to relevant, objective, transparent and non-discriminatory criteria, not compatible with Directive 96/67, in particular Articles 6 and 16(3) thereof. It is for the national court, however, to establish, on the facts, having regard to the actual set-up and purpose of the fee in question, whether it is actually paid in consideration of the use of airport installations and whether the criteria according to which the fee is determined are, as set out in Article 16(3) of the Directive, relevant, objective, transparent and non-discriminatory.

B – The fourth question

60. In the context of the main proceedings, the national court in essence also seeks to ascertain whether requiring payment of a sum by way of the fee in question, as fixed by the relevant provisions, may be regarded as an abuse of a dominant position under Article 82 EC.

61. However, the national court has provided the Court with hardly any information so as to enable it to assess this question. In that regard, it should be recalled that, according to established case-law, the Court has no jurisdiction to give a preliminary ruling on a question submitted by a national court where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it. ( )

IV – Conclusion

62. I therefore consider that the Court should give the following answer to the questions raised by Tribunal Administrativo e Fiscal do Porto in the present case:

Fees like the fee for administrative assistance and supervision as provided for by 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, are, in so far as they are paid as general access fees rather than specifically in consideration of the use of airport installations, and in so far as they are not determined according to relevant, objective, transparent and non-discriminatory criteria, not compatible with Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports, in particular Articles 6 and 16(3) thereof.

It is for the national court, however, to establish, on the facts, having regard to the actual set-up and purpose of the fee in question, whether it is actually paid in consideration of the use of airport installations and whether the criteria according to which the fee is determined are, as set out in Article 16(3) of the Directive, relevant, objective, transparent and non-discriminatory.