98/190/EC: Commission Decision of 14 January 1998 relating to a proceeding under Article 86 of the EC Treaty (IV/34.801 FAG - Flughafen Frankfurt/Main AG) (Only the German text is authentic) (Text with EEA relevance)
Date: 1998-01-14
Institutions: European Commission
Subjects: Germany, air transport, dominant position, infringement of EU law, provision of services

L 72/30

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COMMISSION

COMMISSION DECISION

of 14 January 1998

relating to a proceeding under Article 86 of the EC Treaty

(IV/34.801 FAG — Flughafen Frankfurt/Main AG)

(Only the German text is authentic)

(Text with EEA relevance)

(98/190/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

I. THE FACTS

Having regard to the Treaty establishing the European
Community,

A. FRANKFURT AIRPORT

Having regard to Council Regulation No 17 of 6 February
1962, first Regulation implementing Articles 85 and 86 of
the Treaty (1), as last amended by the Act of Accession of
Austria, Finland and Sweden, and in particular Article 3
thereof,

Having regard to the complaint lodged with the Commis-
sion on 20 July 1993 by KLM Royal Dutch Airlines NV,
Air France Compagnie Nationale SA and British Airways
plc asking the Commission to find, pursuant to Article 3
of Regulation No 17, that Flughafen Frankfurt/Main AG
has infringed Article 86 of the Treaty,

Having regard to the Commission’s decision on 10 May
1994 to initiate proceedings in the case,

Having given the undertaking concerned the opportunity
of being heard on the matters to which the Commission
has taken objection, in accordance with the provisions of
Article 19(1) of Regulation No 17 and Commission Regu-
lation No 99/63/EEC of 25 July 1963 on the hearings
provided for in Article 19(1) and (2) of Council Regulation
No 17 (2), and in particular at three hearings,

Having consulted the Advisory Committee on Restrictive
Practices and Dominant Positions,

Whereas:

(1) OJ 13, 21. 2. 1962, p. 204/62.
(2) OJ 127, 20. 8. 1963, p. 2268/63.

(1)

(2)

(3)

(4)

A.1. Flughafen Frankfurt/Main AG — The
the

subject of

the

Party which is
complaint

Flughafen Frankfurt/Main AG (‘FAG’)
company which owns
airport.

the
and operates Frankfurt

is

According to FAG’s 1995 annual report, Frankfurt
airport is the largest airport in Germany and one of
the largest in Europe in terms of flight movements,
passenger volume and freight volume.

traffic in Germany,

In 1995, it had 372 587 commercial aircraft move-
ments, a volume of 38 191 247 passengers and a
volume of 1 327 865 tons of freight. Compared to
the total
represented
23,7 % of commercial aircraft movements, 34,6 %
of passengers and 70,7 % of freight. Compared to
other European airports, Frankfurt is the second
largest in terms of passengers and aircraft move-
ments (after London Heathrow) and the largest as
regards freight.

this

In 1995, FAG achieved total sales of DEM 2 316,7
million, 37,7 % of which (DEM 873,0 million) is
derived from ground-handling services charges.

A.2. Legal framework for the operation of

Frankfurt airport

The legal framework for the operation of airports in
Germany is set out in the Air Traffic Act (‘Luftver-
kehrsgesetz’ — ‘LuftVG’) of 14 January 1981 and
in the Air Traffic Licensing Decree (‘Luftverkehrs-

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Zulassungs-Ordnung’ — ‘LuftVZO’) of 13 March
1979. According to Article 6 LuftVG, the construc-
tion and operation of airports is subject to prior
authorisation. Article 39 LuftVZO specifies the
competent authority for authorisation purposes.
Authorisation covers both the construction of an
airport
its operation (Article 42
LuftVZO).

as well

as

the airport operator

the airport operator,

Under Article 45 LuftVZO, dealing with the duties
of
is
required to maintain the operational safety of the
airport and has a duty to operate the airport
properly. The airport operator is obliged to submit
to the competent authority rules governing the use
of the airport (‘Flughafenbenutzungsordnung’) for
authorisation (Article 43 LuftVZO); these rules are
subsequently published by the competent au-
thority.

(5)

The rules governing the use of Frankfurt airport
entered into force on 12 April 1984; authorisation
by the Hessian Ministry for Economic Affairs and
Technology was granted on 16 February 1984.

as

defined

services,

remuneration, unless

They contain a provision according to which
ground-handling
‘traffic
handling of aircraft’ (‘Verkehrsabfertigung der Luft-
fahrzeuge’), may be provided by the airport operator
against
the parties have
case,
agreed otherwise
handling equipment and vehicles are to be parked
where specified by the airport operator against
payment of a charge. Furthermore,
the airport
operator may request payment for the use of the
airport and its facilities in such cases.

(Section 2.5).

In that

Special provisions in the rules governing the use of
Frankfurt airport deal with refuelling (Section 2.8)
and with maintenance and exterior cleaning of
aircraft
is
(Section 2.9). As regards refuelling,
provided that companies which refuel aircraft must
be admitted by the airport operator. Those com-
panies and air carriers have to comply with the se-
curity provisions. As
substantial main-
tenance work on aircraft and the washing of
aircraft, the only provision is that those activities
are to take place only in areas indicated by the
airport operator.

regards

it

(6)

Section 4.1 of the rules governing the use of Frank-
furt airport provides that any commercial activity at
the airport is subject to an agreement with the

airport operator which may in principle also entail
payment
to the airport operator. The provision
specifies that the activities of air carriers in direct
connection with the operation of their aircraft is
not considered to constitute a commercial activity.

(7)

The management of Frankfurt airport will also be
influenced by Council Directive 96/67/EC of 15
October 1996 on access to the ground-handling
market at Community airports (1). The Directive
provides that, in the case of airports whose annual
less than three million passenger
traffic is not
movements and of certain categories of services:

— Member States are required to take the neces-
sary measures to ensure free access by suppliers
of ground-handling services to the market for
the provision of ground-handling services to
third parties as from 1 January 1999 (Article 6
of the Directive); however, they may limit the
number of authorised suppliers (to no fewer
than two),

— Member States have to take the necessary
measures to ensure the freedom to self-handle
as from 1 January 1998 (Article 7 of the Dir-
ective); however, they may reserve the right to
self-handle (to no fewer than two airport users),
self-handling being narrowly defined;
joint
handling
liberalisation
measures,

covered by

is not

— where specific constraints imposed by the avail-
ability of space or capacity make it impossible
to open up the market and/or implement self-
handling, the Member State in question may,
subject to Commission approval, decide to limit
the provision of ground-handling services to
one supplier (for a two-year period renewable
once) and to ban self-handling or to restrict it
to a single airport user (for a three-year period,
renewable). Member States
shall notify the
Commission, at least three months before they
enter into force, of any exemptions they grant
(Article 9(3) of the Directive).

By letter dated 15 October 1997,
the German
Government informed the Commission that, on 29
September 1997,
it had taken a decision (here-
inafter referred to as ‘the German Government’s
to
decision of 29 September 1997’), pursuant
Article 9(1) of Directive 96/67/EC, to grant a der-

(1) OJ L 272, 25. 10. 1996, p. 36.

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ogation to FAG from the requirements laid down
in Articles 6 and 7 of the Directive for a two-year
and three-year period respectively. In the same
letter, Germany also proposed measures to over-
come the constraints cited. The letter was registered
with the Commission on 20 October 1997. A
summary of that decision was published in the
Official Journal of the European Communities in
accordance with Article
of Directive
96/67/EC (1).

9(3)

B. OPERATIONS AT FRANKFURT AIRPORT

B.1. Airport layout

(8)

Frankfurt airport has a longitudinal shape. The
airport area is surrounded by motorways (to the
north and east), railways (to the south) and by a
forest which is protected on environmental grounds
(to the west). This means that the surface of the
airport cannot be extended, which hampers the
development of
in-
creasing the useful surface area of the airport is also
limited by the fact that 229 hectares of wooded area
to the south-west are protected for environmental
reasons and that 179 hectares are currently oc-
cupied to the south by the United States Air Force
(USAF).

the airport. The scope for

(9)

The airport landing and take-off facilities consist of
two parallel runways (north and south) and a take-
off only runway (west), almost perpendicular to the
former.

(Terminal 1 and Terminal 2),

The area to the north of the major runways hosts
the main airport buildings. These include two
terminals
the
Deutsche Post, an area dedicated to Lufthansa
cargo and Lufthansa operations and a tanker area
(for
fuel). The north-east area
contains the commuter area and the Little League
area, which has recently been returned to FAG and
which has been allocated to USAF Mail.

the storage of

The smaller area south of the major runways has
been occupied by the United States Air Force since
the end of World War II. However, a portion of
this area has recently been handed back to FAG,
which has moved its freight activities there.

(10)

Terminal 1 and Terminal 2 differ significantly in
their shape, in particular to the extent that the first

(1) OJ C 335, 6. 11. 1997, p. 7.

one comprises two culs-de-sac whereas Terminal 2
is linear. Terminal 1 consists of three piers (A, B
and C), while Terminal 2 is divided in two areas
(piers D and E).

Some [ . . . ] % of passenger aircraft movements and
[ . . . ] % of passengers flow through Terminal 1 (2).

(11)

(12)

There are currently (3) 142 stands at Frankfurt
airport: 49 gate stands (36 in Terminal 1 and 13 in
Terminal 2), 57 remote stands (18 facing Terminal
2, 11 facing pier A and 28 towards the western part
of the airport), 11 commuter stands and 25 freight
stands. As a general rule, the remote stands facing
Terminal 2 serve flights allocated to Terminal 2
while all other remote stands serve flights allocated
rule may,
to Terminal 1. Exceptions
however occur.

to this

Frankfurt airport is equipped with a central fully
automatic baggage conveyor system which is situ-
ated within the Terminal area. This system is used
for the sorting and transporting of baggage from
the check-in counters in the Terminal to loading
stations on the ramp, and for the sorting and trans-
porting of baggage in transit from ad hoc transit
stations to the loading stations on the ramp.

(13)

Traffic on the apron at Frankfurt airport is heavy.
This is due to a series of factors, inter alia the
shape of the airport and the relatively high number
of remote stands.

B.2. Airport capacity

(14)

(15)

Frankfurt airport faces growing demand for landing
and take-off facilities. This growing demand stems
from the growth of passenger traffic (both point-
to-point and transit) and freight traffic as well as
from FAG’s attempt to serve the courier and mail
markets. The limit on FAG’s response to this
demand is set by airport capacity.

The capacity of an airport is dictated inter alia by
the following three elements: the runway capacity,
the capacity of the stands and the capacity of the
terminal buildings. Since it cannot develop outside
its current boundaries, FAG has entered into a
process of continuing improvement of the existing
facilities,
layout and re-
building the premises.

re-shaping the airport

(2) Information provided orally by FAG.
(3) Source: Fraunhofer-Institut f(cid:129)r Materialfluß und Logistik, 27.

6. 1997, p. 17.

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(16)

The runway capacity seems to have historically
constituted the limiting factor at Frankfurt airport.
Given the impossibility of building a second
runway system to match the growing demand (due
to the impossibility of extending the airport
surface), FAG built an additional
take-off only
runway (operational since 1984) and worked to
develop a more efficient use of
the existing
runways. FAG’s goal is to increase the number of
maximum movements per hour from 48 (in the
1970s) to 74 (1997) and to 80 (in the year 2000).

(17) As regards terminal capacity, FAG built a second
terminal and is currently building an extension to
Pier A (Terminal 1) towards the West.

Accordingly,
the number of stands available is
planned to rise to 156 in the year 2000, together
with a reduction in the dependence on remote
stands. New stand development at Frankfurt airport
includes 18 additional gates at the extension of Pier
A and 4 additional stands at
the link between
Terminal 1 and Terminal 2.

The resulting terminal and stand capacity will be
sufficient to match the increased runway capacity.

— transport, sorting and transfer of baggage,

— transport of cargo and mail on the ramp,

— cabin cleaning,

— toilet and water services,

— push-back/towing of aircraft,

— provision and operation of equipment to carry

out the above activities,

— fuelling of aircraft,

— the transport of catering supplies to and from

the aircraft.

C.2. Ground-handling at Frankfurt airport

(21)

FAG draws a general distinction between services
provided on the land-side, in particular passenger
handling in the terminal building and freight
handling, and air-side activities, that is to say, all
activities on the ramp. Apart from those services,
FAG also mentions ‘other supply services’, namely
fuelling of aircraft and catering, which are also
generally understood to belong to ground-handling
services.

C. GROUND HANDLING SERVICES

(22) On the land side, FAG has allowed air carriers the

right of self-handling and/or third-party handling.

C.1. Definition

(18) Ground-handling services comprise all the activ-
ities performed on the occasion of a stopover of an
aircraft at an airport in respect of the aircraft itself,
the passengers and the cargo. These activities are
listed in the IATA Standard Ground-handling
Agreement.

(19)

In general, ground-handling services may be
provided for airlines by the airport operator, by
another airline or by an independent specialized
ground-handling company (third-party handling).
Air carriers may also provide their own handling
services either individually (self-handling) or in a
pool (joint handling).

(20)

The ground-handling services concerned by this
Decision are the ones that take place on the ramp
(or apron) of the airport. They consist substantially
of the following:

— provision and operation of equipment for the
embarkation and disembarkation of passengers,

— transport of passengers between the terminal

and the aircraft position and vice versa,

— crew transport,

— loading and unloading of baggage, cargo and

mail,

As regards passengers, air carriers may self-handle
their land-side activities at Frankfurt airport. In
addition, all airlines have the right to handle the
passengers of other airlines. Airlines may also use
FAG for the provision of handling services. In-
dependent handling operators have not been
admitted by FAG for the provision of passenger
handling services.

As regards freight handling in so far as it takes
place on the land-side, self-handling is possible as
to other
third-party handling services
well as
airlines. Several airlines make use of the services of
FAG in this area. Independent operators have been
admitted.

In addition, FAG has granted concessions to third
parties for the fuelling of aircraft, for catering and
for certain limited ramp-side activities, such as
snow and ice removal. Those services are not
provided by FAG.

(23) As regards the provision of the other ramp-side
activities (namely the ones listed in paragraph 20
except fuelling, catering and snow and ice removal),
FAG has refused to allow self-handling or to admit
third-party handlers. FAG is consequently the only
provider of those services at Frankfurt airport.

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In its reply to the statement of objections, FAG
confirmed that it had refused potential competitors
the right to provide such ramp-handling services.

(26)

The scope of this Decision is limited to the ramp-
side activities for which FAG has neither allowed
self-handling nor admitted independent third-party
service suppliers (hereinafter ‘ramp handling’).

(24)

The provision of ground-handling services by FAG
to air carriers is based on a contract concluded with
air carriers. These ground-handling contracts are
based on FAG’s Standard Ground-handling Agree-
ment dated 1 March 1983. Many of them were
amended after 1995.

The Annexes
to the standard ground-handling
agreements list the services to be provided by FAG
to the carrier and the charges to be applied. The
list of service activities is similar but not identical
to that contained in Annex A to the IATA
Standard Ground-handling Agreement.

(27)

D. PHYSICAL

POSSIBILITY

OF

ADMITTING

COMPETITION ON THE RAMP

D.1. General

FAG has submitted that the space available on the
ramp is not sufficient to allow self-handling or to
accommodate
ramp-
handling services. In FAG’s view, its monopoly is
justified for the following reasons:

additional

suppliers

of

Article 3(2) of
the Standard Ground-handling
Agreement contains a provision under which the
air carrier shall not appoint any other person,
company or organisation to provide the ground-
handling services which FAG has agreed to provide
by virtue of the agreement, except in such special
cases as shall be mutually agreed between the
parties.

(25) Certain exceptions to FAG’s monopoly for the
provision of ramp-handling services have existed
for ‘historical reasons’:

right

— the US airline Delta Air Lines, which had
reserved its
to provide self-handling
services with regard to those flights it took over
from the US airline Pan Am in 1991. The
former right of Pan Am to self-handle dates
back to the period following World War II.
Delta ceased to exercise this right in 1997,

— the airline SAS, which arranged for its own
personnel to perform manual loading and un-
loading activities on the ramp. This right has its
historic origins, in that SAS was the first airline
after World War II to start purely commercial
air transport services. SAS gave up self-handling
of its aircraft in 1995,

— there is currently insufficient space on the ramp
for parking the handling equipment of more
than one handler;
self-
handling or of competition would lead to the
closure of
in
reducing the airport capacity. This would also
affect its ability to meet future demand,

the admission of

and therefore

stands

result

— traffic density would rise to an intolerable level,
which would adversely affect the safety level
and the minimum connection time (MCT) —
currently 45 minutes.

(28)

FAG submitted several consultants’ reports, drafted
by Netherlands Airport Consultant BV (NACO)
and Fraunhofer
f(cid:129)r Materialfluß und
Logistik (Fraunhofer).

Institut

The Commission set up a group of
technical
experts (hereinafter ‘TEG’), consisting of represent-
atives of FAG and of the complainants. The group
was chaired by an expert
appointed by the
Commission, Mr Penwarden. Since no unanimous
conclusion could be reached, the TEG chairman
submitted a report under his sole responsibility
(hereinafter ‘Penwarden report’). FAG submitted a
separate report.

the Commission appointed Professor
Thereafter,
Doganis, Head of the Air Transport Group of the
College of Aeronautics at Cranfield University as a
new independent
Professor Doganis
expert.
submitted a report (hereinafter ‘Cranfield report’).

— the express delivery company Federal Express
which has the right to self-handle a limited
number of activities on the ramp.

The conclusions on the relevant issues and the
results of the reports are summarised below.

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D.2. Parking areas

D.2.1. General

(29)

FAG has argued that the introduction of competi-
tion at Frankfurt airport should not be envisaged
on a dedicated-stand basis (whereby each handler
would be allocated a predetermined set of stands),
but should be envisaged on a flexible allocation
basis. This is not disputed.

(30) On this assumption, the admission of self-handling
and/or further third-party handlers may lead to
additional parking space requirements. The main
reason is that the total amount of equipment neces-
sary for the supply of ramp-handling services is
often higher with multiple handlers than with a
monopoly
is
(and that more parking space
accordingly needed to park such equipment).

It is noteworthy that the various reports submitted
to the Commission either come to contradictory
conclusions or, at least, are not fully consistent one
with another. This is not surprising, since these
estimations rely on a number of assumptions (par-
ticularly in terms of client portfolios) which
strongly influence their outcome.

It has accordingly been necessary to take into
account a number of further considerations in ar-
riving at a final view (see legal assessment).

D.2.2.

The experts’ reports

D.2.2.1. The experts appointed by FAG

(32) NACO comes to the conclusion that there is not
enough parking space at Frankfurt airport to admit
one or several additional handlers.

the size of equipment

The need for additional equipment is linked to
diseconomies of scale and of scope. The total
amount of ground-handling equipment is closely
related to the volume of traffic at the peak. In
monopoly conditions,
is
determined by the requirements at the airport peak.
Conversely, the size of equipment under compet-
itive conditions is determined by the sum of each
handler’s equipment, which is determined by the
respective requirements at each handler’s peak.
Clearly,
the handlers’ peaks do not necessarily
coincide with the airport peak and the resulting
total number of equipment items will be higher. In
other words, competition leads to structural ‘over
equipment’ which results into additional parking
space requirements.

In addition, FAG has argued that the admission of
self-handling and/or further third-party handlers
would lead to a reduction in the space available for
parking (in particular due to reduced scope for
using preparation areas as parking space). Ac-
cordingly, reference will be made below where
appropriate to gross additional space requirements
and net additional space requirements, with the
latter taking into account this reduced availability
of space.

(31)

FAG has submitted that
the admission of self-
handling or of additional ground-handlers on the
ramp is not possible since there is not enough
space to park their equipment. To assess the latter,
it is necessary to estimate the balance between the
parking space
‘space
requirements’) and the area available for parking
(hereinafter ‘space available’).

requirements

(hereinafter

the

that

available
NACO estimates
amounts (1) to some [ . . . ] m2 while the space re-
quirements amount to some [ . . . ] m2 under mono-
poly conditions and to some [ . . . ] m2 if one addi-
tional handler were to be admitted (2).

space

The calculation of the [ . . . ] m2 of space available
was made on the basis of theoretical availability
according to maps of the area. They result from
[ . . . ] m2 available parking areas, [ . . . ] m2 on prep-
aration areas,
[ . . . ] m2 of wheeled storage near
cargo halls and [ . . . ] m2 of buffer area. This figure
also takes into account a reduction of space avai-
lable of some 4 300 m2 (2 697 + 1 630 m2) for
parking which are now used as cargo buffer areas,
following the move of cargo activities
to the
south (3).

To calculate the space requirements, NACO es-
timates the total equipment required respectively in
monopoly conditions and in competitive condi-
tions. Then, it calculates the surface occupied by
such equipment. Finally, the total parking space
requirement is calculated by multiplying the latter
surface by two factors (respectively 1,30 and 1,34
for a total of 1,75) in order to take into account the
spare area necessary around the pieces of equip-
ment and the area necessary to manœuvre them.

(1) NACO, presentation at

the oral hearing. Former NACO
studies came to other figures ranging from approximately
130 000 m2 to approximately 148 000 m2. NACO also impli-
citly considered that the total space available depends on mar-
ket conditions (i.e. monopoly or competition).

(2) NACO 14. 5. 1997 and presentation at the oral hearing.
(3) NACO 14. 5. 1997, p. 11.

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The figure of space requirement of [ . . . ] m2 takes
into account the fact that, in 1997, Delta reduced
its flights to Frankfurt and is now handled by FAG.
Former Delta slots have been occupied by other
airlines, which NACO assumes to be handled by
FAG. Before Delta’s decision to reduce its flights
and to stop self-handling in 1997, the space re-
quirements were estimated at some [ . . . ] m2.

The amount of space which would be required
under competitive conditions is calculated as the
sum of the space currently required by FAG ([ . . . ]
m2) plus the net additional space requirements of
an additional handler (32 000 m2).

NACO also estimates the space required and av-
ailable in the year 2000. None of the estimations
refers specifically to a situation where FAG and one
or
two independent handlers would operate.
However, all the simulations show that, in all cases,
the space balance will worsen by 2 000 to 3 000 m2
in the year 2000.

(33)

Fraunhofer assesses the situation which was im-
plicitly recommended by Cranfield University
(FAG plus two handlers in Terminal 2) and comes
to the conclusion that there is not enough space in
Terminal 2.

if

Fraunhofer adopts the same method as NACO. It
estimates that the space requirements would rise
from some [ . . . ] m2 under monopoly conditions to
some [ . . . ] m2
two additional handlers were
admitted (1). This additional demand for space is
concentrated in Terminal 2, where the need for
parking areas would rise (2) from some [ . . . ] m2 to
some 29 000 m2 compared to an available area of
some [ . . . ] m2. The resulting space deficit of some
11 000 m2 is to be added to the space deficit of
some 1 000 m2 in the freight area.

In addition, Fraunhofer notes that this deficit in
Terminal 2 will have repercussions in Terminal 1.
The reason is that there is currently a structural
space deficit in Terminal 1 (some 2 000 m2 in the
passenger area plus 6 000 m2 in the freight area)
which has been compensated, until now, by the use
of stands and/or by the use of spare areas in
Terminal 2. Such a compensation would ac-
cordingly no longer be possible.

sible (3). However, since his report dates back to
1995 and since FAG continuously renovates the
airport layout, these conclusions may now prove to
be out of date.

Mr Penwarden does not make an estimate of space
requirements but accepts that they range between
FAG’s estimation (some [ . . . ] m2) and the com-
plainants’
estimation (some 120 000 m2). He
accepts FAG’s figure as the ‘worst case’ and states
that the former would be met by some 285 000 m2
space available.

The 285 000 m2 are calculated as the sum of [ . . . ]
m2 (as estimated by FAG in 1995) plus 25 300 m2
additional parking space (in the following areas:
Cargo centre, Area 22, Commuter ramp, area adja-
cent LCC, grass area south of Cargo and Terminal
2) plus 94 460 m2 on preparation areas. In addition,
Mr Penwarden noted that potential available space
can be found in the US Military mail area (5 000 to
6 000 m2), in the Little League area (20 000 m2) and
in the southern USAF base portion (an extensive
area).

(35) Cranfield University comes to the conclusion that
there is enough space to admit multiple ramp
handling at Frankfurt airport (4).

Cranfield estimates the parking space requirements
under competitive conditions on the ramp at some
104 000 m2. This figure results from a standard
calculation empirically applied by a major UK
airport. The latter is based on the assumption that
parking space requirements correspond to a certain
the aircraft stand areas (12 % for
percentage of
and 22 % for wide-body
narrow-body stands
stands).

Space available for parking is estimated at 174 000
m2. This area has been calculated on the basis of a
figure supplied by FAG which was adjusted fol-
lowing a visual inspection of the site. The figure of
174 000 m2
results from [ . . . ] m2 of declared
current parking space plus
that will
become available in the near future (area north to
pier A extension, V4 and cargo areas 4, 5 and 6)
minus
the
construction of new facilities.

that will be needed for

[ . . . ] m2

[ . . . ] m2

D.2.2.2. The experts appointed by the Commission

(34) Mr Penwarden comes to the conclusion that the
admission of competition on the ramp is pos-

Cranfield adds that in any case, even if — as was
suggested by FAG and its consultants — a certain
number of stands were to be closed to ‘create’ addi-
tional parking space, such closure would not have

(1) Fraunhofer 27. 6. 1997, p. 41 and Annex 15.
(2) Fraunhofer 27. 6. 1997, pp. 38, 41 and oral presentation, chart

p. 8.

(3) Source: Penwarden report, April 1995.
(4) Source: Cranfield report, June 1997.

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an impact on the overall airport capacity, since the
current capacity constraint is the runway capacity
(experience has shown that the number of stands is
sufficient to meet the demand corresponding to 85
to 90 movements per hour (1)).

Finally, as regards the future, Cranfield is of the
opinion that no dramatic change will occur until
1999 and that any additional space requirement
will be matched inter alia thanks to the reduced
dependence on remote stands.

D.2.3.

Commission evaluation of the reports

D.2.3.1. NACO

(36) As regards the calculation of space requirements,
the multiplication factors of 1,30 and 1,34 (totalling
1,75) adopted by NACO have not been explained.

During the hearing,
the NACO representative
acknowledged that these factors do not represent
any industrial standard, but have been developed
for the present case instead. No further explanation
was provided other than the fact (communicated by
FAG at a later stage) that these factors result from a
(weighted) average of the factors applicable to each
individual piece of equipment.

As a comparison, NACO noted that Cranfield
University implicitly adopted a lower factor of 1,24,
which is not an industrial standard either. This
shows that these factors are arbitrary anyway.

(37) NACO’s methodology leads automatically to an
overestimation of the space requirements.

Its method is based on the assumption that parking
areas must be designed to park all the equipment
at the same time. In other words, it is assumed that
it happens during the day that all the equipment is
at rest in the parking areas, while all the stands are
occupied by aircraft, none of which is served by a
handler. Clearly, this situation is very unlikely to
occur. The reality is that in the course of the day a
major share of the equipment is either in transit or
is serving the aircraft. This is particularly true in an
airport like Frankfurt, which is busy the whole day
long. The only time where a lot of equipment is at
rest is during the night. However, during the night

(1) Source: Oral hearing, see report p. 43.

equipment could be easily parked on, for example,
unoccupied stands.

(38) NACO also overestimates the impact of competi-

tion (32 000 m2):

— First, NACO’s estimate of the net additional
space required if an additional handler
is
admitted as compared to the monopoly situ-
ation (32 000 m2) is not correct. The 32 000 m2
do not represent the net additional space re-
quirements of one additional handler only, but
the net additional space requirements of the
situation whereby both Delta and an inde-
pendent handler operate, as compared to the
monopoly situation (2). The net additional space
requirements attributable to Delta ([ . . . ] m2)
should not be counted together with the net
additional space requirements attributable to
the additional handler, for two reasons. First
because they do not result from the presence of
the independent handler but of Delta; second
because in any case Delta has ceased self-
handling and the space requirements attrib-
utable to the handling of Delta flights are
already comprised in the [ . . . ] m2 required by
FAG. The net additional space requirements of
an independent handler as compared to the
should accordingly be
monopoly conditions
some 18 500 m2 =[ . . . ].

It should also be noted that NACO had pre-
viously estimated that where Delta was self-
handling, the presence of a third independent
operator would have resulted in gross additional
space requirements of some [ . . . ] m2
([ . . . ]
m2) (3).

In the present situation (where FAG is the only
operator, since Delta has ceased its ground-
handling activities), one would accordingly
expect the total space requirements to rise —
all other things being equal — to less than
165 000 m2 ([ . . . ]) and not to NACO’s figure of
[ . . . ] m2 (which is even higher than the hypo-
thesis FAG plus Delta plus a third handler).

— Secondly, even NACO’s original estimation of
gross additional space requirements of [ . . . ] m2
appears to be excessive.

(2) NACO 14. 5. 1997, p. 19 — unless otherwise stated, all the

figures quoted in this paragraph refer to this source.

(3) NACO 27. 10. 1995, pp. 32-33.

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It appears from the various NACO estimations
that
the gross additional space occupied by
Delta before it reduced its flights was [ . . . ] m2
(calculated as the total space required where
[ . . . ] m2 minus the
Delta was self-handling:
total space required if FAG alone handled the
same number of flights (1):

[ . . . ] m2).

Delta handled some 3 % of the aircraft, but this
figure rose to some 13,4 % if measured at its
peak (2) (Delta used to operate between 8 a.m.
and 2 p.m. and did not operate during the after-
noon). These figures compare quite well with
the expected market shares and peaks of a new
entrant handler (respectively 7,8 % and 12,4 %,
where the latter figure is the one that influences
the level of total equipment required).

In view of the above and unless it is assumed
that the new handler would handle all types of
different aircraft (so that the new handler would
have to possess all kinds of equipment), which
is unlikely,
[ . . . ] m2 seems
excessive.

the estimate of

(42)

(43)

(44)

(39)

Finally, it is noted that the situation towards the
end of the century will not significantly differ from
the present one.

D.2.3.2. Fraunhofer

(40)

(41)

Since Fraunhofer studies rely on the same assump-
tions as NACO’s, the same comments made with
respect to NACO’s methodology apply to Fraun-
hofer.

In addition, Fraunhofer estimates that the presence
of two handlers whose aggregate market share will
range between 30 and 35 % (measured on the basis
of the number of movements or number of passen-
gers handled) would lead to a rise in total equip-
ment required in Terminal 2 of 107 % (measured
on the basis of the surface occupied). This estima-
tion is probably too pessimistic.

Depending on the assumptions made — for
example, if each ground-handler’s peak coincides
with the other ground-handler’s off-peaks — this
increase is physically possible. However, such a
situation is highly unlikely, since,
in an open
market, the economic rationale will lead the new

(1) NACO 14. 5. 1997, p. 2 — unless otherwise stated, all the

figures quoted in this paragraph refer to this source.

(2) NACO 27. 10. 1995, p. 7.

entrants to select their clients in such a way that
they can optimise the use of their equipment (and
hence with limited fluctuation of their activity).

terminal

Finally, Fraunhofer’s approach, which calculates the
balance at
(namely two separate
level
balances for Terminal 1 and Terminal 2), is ques-
tionable. In reality there are no physical barriers
between the two terminal zones. This means that
equipment needed for one terminal can be parked
in the other terminal area (as is currently the case
according to Fraunhofer). Fraunhofer’s approach
accordingly goes into unnecessary detail.

D.2.3.3. Penwarden

In view of the time that has elapsed, the Penwarden
report seems to be out of date and no major
comment is needed. However, the issue raised by
Mr Penwarden with respect to the use of prepara-
tion areas deserves comment.

The extensive use of preparation areas for long-
term parking of equipment — as suggested by Mr
Penwarden — would be problematic at Frankfurt
airport in competitive conditions. The reason is
that the use of preparation areas as parking areas is
relatively easy to organise if the handlers work on
an ‘allocated stand’ basis (which is excluded for
flexibility reasons), but more difficult otherwise.

However, it appears from the flight plan simulation
provided by Fraunhofer (3) that a certain number of
stands are de facto allocated to Lufthansa:
[ . . . ]
fully allocated and [ . . . ] almost fully allocated (only
one non-Lufthansa flight in a week). This number
could most probably be increased by the airport
operator without having a major effect on airport
efficiency. This means that (parts of) the prepara-
tion areas corresponding to these stands could be
used as parking area by the company in charge of
handling Lufthansa. This view seems to be shared
by NACO, which includes some preparation areas
among the parking areas.

D.2.3.4. Cranfield University

(45) Cranfield University overestimates

the parking

space available.

This is not due to the fact — put forward by FAG
— that Cranfield counted twice the [ . . . ] m2. The
reason is that, when making the calculation of
space available today plus/minus developments in
the near future, Cranfield should have taken as

(3) Fraunhofer 27 June 1997, last Annex.

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basis the figure quoted by FAG (1) of
[ . . . ] m2
instead of the figure calculated by NACO of [ . . . ]
m2. It is the figure provided by FAG that best
matched the reality at the time when Cranfield
inspected the apron at Frankfurt. The total space
available should accordingly read 164 000 m2.

linked to the level of staff training, and that a
handler with too small a market share will tend to
train its
insufficiently. Cranfield therefore
recommended that a cap on three handlers (FAG
+ 2) be set in order to allow a sufficient market
dimension for everyone.

staff

(46) As regards space requirements, the same criticism
made of NACO at paragraph 36 also applies to
Cranfield, since it does not appear that the calcula-
tion method adopted is recognised as an industrial
standard.

D.3. Traffic density and safety

FAG argued that the admission of competition on
the ramp would lead to an increase in traffic
density. Higher
in
greater delays (due to longer travel times on the
apron) and in lower safety (due to a higher number
of accidents).

traffic density would result

To support
computer simulations.

this

statement, FAG referred to

(47)

(48)

by

first

submitted

simulation

The
FAG (2)
compared the monopoly situation with a four-
handlers situation. It showed inter alia that the
number of movements (measured at the 20 busiest
crossings) would grow by an average of 18 % (the
variation at each crossing ranging from –13 % to
+40 %).

comparing

(FAG+Delta)

However, FAG subsequently submitted a second
simulation (3)
to
(FAG+Delta+one independent handler), which
concluded that no significant change occurred
from one situation to the other. Further simulations
submitted by FAG did not show any significant
change due to the introduction of competition
either.

(51) Cranfield finally noted that particular attention
should be paid to the core of Terminal 1 (namely
the whole of the terminal with the exception of the
link with Terminal 2 and of the north of pier A),
where the roadway system is constrained (and
congested), because of
the terminal design. The
presence of a second handler with a small market
share in the portion of Terminal 1 where non-
Lufthansa flights are handled (particularly in the
cul-de-sac formed by the eastern edge of pier B and
pier C) would give rise to equipment movement
which could block the roadway system.

D.4. Minimum connection time (MCT)

(52) MCT is the minimum time which is necessary for a
passenger and his or her luggage to be able to catch
a connecting flight. A short MCT is an important
competitive tool for a transit airport like Frankfurt.

FAG guarantees an MCT of 45 minutes, one of the
shortest MCTs in Europe. The automatic luggage
conveyor system plays a central role in this context,
since it is able to convey one item of luggage from
one end of the airport to the other end in 20
minutes.

(53)

FAG argued that the introduction of competition
will adversely affect the MCT. In FAG’s view, the
independent handlers would not be able to transfer
the passengers and their luggage as quickly as FAG.

(49)

The latter tends to confirm Cranfield’s view that,
even if the presence of additional ground handlers
most probably will lead to higher equipment levels,
these higher levels should not lead to higher traffic.
On the contrary a reduction in traffic flows will
most probably occur in the future, thanks to the
expected reduced dependence on remote stands.

(50) Cranfield noted, however, that the admission of an
excessive number of handlers could give rise to a
deterioration in safety. The reason is that safety is

(1) FAG letter of 16 May 1997.
(2) NACO 18. 6. 1994, p. 50.
(3) NACO 17. 2. 1995, p. 44.

II. LEGAL ASSESSMENT

A. THE MARKETS AND THE DOMINANT POSI-
TION

(54)

There are two markets involved in this Decision.
First, the market for the provision of airport facil-
ities for the landing and take-off of aircraft in the
Frankfurt area (namely Frankfurt airport), on which
the
FAG abuses its dominant position. Second,
market for the provision of ramp-handling services
within Frankfurt airport on which the effects of
such abuses are observed.

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A.1. The market for the provision of airport

facilities at Frankfurt airport

A.1.1. Market definition

(55)

(56)

The relevant service market
is the provision of
airport facilities, which allow the aircraft to land
and take off. These facilities are supplied by the
airports operators, who charge fees in return.

relevant geographic market

The
airport.

is Frankfurt

— An airline wishing to provide a point-to-point
air transport service to or from a specific city or
a region — here the city of Frankfurt and its
surrounding catchment area — cannot choose
between different airports into which or from
which to operate the service in question. There
are no other international airports in the near
vicinity of Frankfurt which could be considered
substitutable for the provision of point-to-point
air transport services to and from Frankfurt and
its
certain
distance, airports cannot realistically be con-
sidered to be substitutable in so far as point-to-
point traffic is concerned. This is the case with
the international airports closest to Frankfurt
(Amsterdam-Schiphol and Zurich), which are
located more than 300 km away,

surrounding region. Beyond a

is

— Competition between airports

significant
only in so far as an airport constitutes a hub, i.e.
a transfer point for connecting flights. FAG has
pointed to its importance as a hub airport,
stating that [ . . . ] % of all passengers at Frank-
furt airport are transfer passengers.

In that context, a competitive relationship exists
between a number of large European airports
for part of
i.e. non-direct
traffic using an airport as a transfer point.

the overall

traffic,

However, connecting traffic does not account
for the total traffic at an airport, and the ma-
jority of such traffic will be traffic for which the
airport in question is relevant as point of origin
or point of destination. This is also the case for
Frankfurt airport, considering that — on the
basis of the above figure provided by FAG —
roughly [ . . . ] % of passengers at the airport are
point-to-point passengers,

particular airport is used as a hub, the degree of
substitutability is nevertheless limited to a small
part of the total traffic at that airport. A larger
degree of substitutability will exist
for non-
European airlines than for European airlines,
because the latter will tend to establish their
hub in their country of origin. It appears for
instance unlikely that Lufthansa would establish
its hub outside Germany since this carrier’s
network naturally includes
several domestic
routes, and there appears to be no suitable alter-
native German airport to host the Lufthansa
hub (at least in the short term).

Taking into account the fact that more than
60 % of all
transfer passengers at Frankfurt
airport are Lufthansa passengers, the substitut-
ability between Frankfurt and other large Euro-
pean airports can be estimated at roughly 15 to
20 % of total passengers at Frankfurt airport.

A.1.2 Substantial part of the common market

(57)

Frankfurt airport constitutes a substantial part of
the common market.

It has been accepted by the Court of Justice in its
ruling of 10 December 1991 in Case C-179/90,
Port of Genoa (1) that the market for the organiza-
tion of port activities relating to ordinary freight in
the port of Genoa and the carrying-out of such
activities could be considered to be a substantial
part of the common market. In that ruling the
Court took particular account of the volume of
traffic in the port and its importance in relation to
the overall volume of imports and exports by sea to
and from Italy, the Member State concerned.

(58)

Frankfurt airport may be considered to constitute a
substantial part of the common market. It is the
largest international airport in Germany, account-
ing for the largest volume of traffic in terms of
passengers,
freight or commercial aircraft move-
ments (see paragraph 2).

A.1.3. The dominant position

(59) On the basis of the relevant German legislation,
FAG holds a monopoly for the operation of Frank-
furt airport as a facility for the landing and take-off
of aircraft.

— Furthermore,

the Commission considers that
even with regard to non-direct traffic where a

(1)

[1991] ECR I-5889.

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The Court of Justice has held,
in Case 311/84
T(cid:130)l(cid:130)marketing of 3 October 1985 (1), that Article 86
applies to an undertaking holding a dominant posi-
tion on a particular market, even where that posi-
tion is due not to the activity of the undertaking
itself, but to the fact that by reason of provisions
laid down by law there can be no competition or
only very limited competition on that market.

(63)

another

The vast majority of ramp-handling services has to
be provided on the occasion of each stopover of an
aircraft at an airport and therefore cannot be shifted
to
airport. Certain exceptions may,
however, be imagined: for example, it may not be
necessary in the case of two consecutive short-haul
flights to have water and/or toilet services provided
at the stop-over airport. However, this appears to be
a very limited exception only, and the choice will
in all likelihood also be influenced by other factors,
such as, for instance, the flight schedule of the
airline in question, in itself influenced by the avail-
ability of particular slots at a particular airport. It
follows therefrom that there is not sufficient substi-
tutability as regards the market for the provision of
ramp-handling services, and the relevant geo-
graphic market to be considered in this respect is
therefore Frankfurt airport.

A.2.2. Provision of ramp-handling services as a

separate market

(64)

(65)

FAG has argued that the delineation of two sep-
arate markets is incorrect. In its view, the provision
of airport
facilities for landing and take-off of
aircraft cannot be separated from the provision of
since the one comple-
ramp-handling services,
ments the other. Both services would accordingly
constitute a single market.

The substitutability test supports the thesis that the
provision of ramp-handling services and the provi-
sion of airport facilities for the landing and take-off
of aircraft constitute two separate (neighbouring)
markets.

— As regards the demand side (the air carriers),
there is no possibility of substitution between
the two services and consequently no cross-
price elasticity of demand between them. From
their viewpoint,
the services relating to the
provision of facilities for the landing and take-
off of aircraft are distinct from and not inter-
changeable with ramp-handling services.

This view is further supported by the fact that
the airport customers (the airlines) do not pay a
lump sum for the whole of the services received
but are charged two separate charges (landing
fees and ground-handling charges). In addition,
FAG has recently introduced a new charging
system, whereby the airlines may select
the
services they want to receive and are charged
accordingly.

A.1.4. Conclusion

(60)

FAG holds a monopoly on the market
for the
provision of airport facilities for the landing and
take-off of aircraft at Frankfurt Airport. It holds a
dominant position within a substantial part of the
common market.

In its reply to the statement of objections, FAG
agreed that it holds a dominant position on the
market for the provision of airport infrastructure
and that Frankfurt airport on the one hand consti-
tutes the relevant geographic market and on the
other is a substantial part of the common market.

A.2. The market for the provision of ground-

handling services at Frankfurt airport

A.2.1. Market definition

(61)

(62)

For the purposes of this Decision, the other service
market under examination is the market for the
provision of the ramp-handling services provided
by FAG, namely the ramp-handling services listed
in paragraph 20, excluding fuelling and catering
services.

Since ramp-handling services include various ac-
tivities (see above), they do not form a homoge-
neous whole. The services concerned, although all
taking place on the ramp, require, as a general rule,
a distinct technical and operational know-how and
respond to different demands. It is therefore not
out of
the question that each service could be
regarded as a separate service market.

However, the scope of this Decision covers all the
services provided by FAG on an exclusive basis,
and the fact of considering these services as a single
market does not affect the assessment of the abuse
of a dominant position. Accordingly, reference will
be made to ‘ramp-handling services’ as a whole.

(1)

[1991]ECR 3261.

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As was correctly pointed out by FAG,
the
reason for non-substitutability is that the provi-
sion of landing and take-off facilities and the
provision of ramp-handling services are two
complementary or ancillary functions. However,
their degree of complementarity is not such
that these services have to be purchased from
the same supplier,

— As regards the supply side, it appears that the
markets for the provision of airport landing and
take-off facilities and for the provision of ramp-
handling services are significantly different in
this respect. The provision of airport facilities
for the landing and take-off of aircraft often
presents the characteristics of a natural mono-
poly (due to lack of supply-side substitutability).
Conversely, competition is possible as regards
the
services,
provided that alternative suppliers are allowed
on the ramp.

ramp-handling

provision

of

Indeed, ramp-handling services may be but do
not necessarily have to be provided by the
the facilities.
airport operator as provider of
They can also be provided by others, namely
airlines or independent operators, as happens in
several other European airports.

In that respect the ICAO Airport Economics
Manual (Document 9562 — First Edition 1991,
Annex 1), describes in chapter 2, point 2.11, the
scope of the services and areas for which an
airport operator is to be responsible as normally
including: ‘most or all of the following: aircraft
movement areas, passenger Terminal facilities,
cargo facilities, aircraft parking areas, hangar
facilities, air traffic control including commun-
ications,
sometimes, meteorological
services’. The provision of ground-handling
services is not mentioned in this list.

and

pendent handlers supply ramp-handling services in
other airports cannot be used as evidence in this
context.

(67)

FAG’s arguments fail in both aspects.

The Court of First Instance has already given a
ruling in a similar case, taking a different view
from that adopted by FAG. This was the judgment
in Case T-30/89 Hilti of 12 December 1991 (1).
That case related to the market
fastening
systems used in the building industry. One of the
questions examined by the Court was whether the
market for nails was separate from that for nail
guns, particularly as
the products are comple-
mentary and as the manufacture of nail guns is
protected by patents.

for

The Court held that ‘with particular regard to ( . . . )
nails ( . . . ), it is common ground that since the
( . . . )
there have independent producers
1960s
making nails intended for use in nail guns. Some
of those producers are specialized and produce only
nails, and indeed some make only nails specifically
designed for Hilti tools. That fact in itself is sound
evidence that there is a specific market for Hilti-
compatible nails.’

(68)

Finally, it should be noted that FAG’s position in
this case is not consistent with FAG’s own view of
its business, as described in the company’s 1995
annual report. According to the latter, FAG’s rev-
enues stem from four business segments: ground-
handling services (which account
for 37,7 % of
fees (30,8 %), rental and
total business), airport
concessions (20,2 %) and others. More specifically,
it is stated at p. 30 that ‘FAG’s main business pillar
is ground — handling services. These comprise
airside services-i.e. handling activities on the ramp
— and landside services.’

is

therefore plain that,

It
in FAG’s view too,
handling services represent a market separate from
the market for the provision of airport facilities for
landing and take-off of aircraft.

However, the Commission accepts that the auto-
matic conveyor system for sorting and transporting
tool which allows
the baggage is an efficient
optimal use of the infrastructure. It is unlikely that
alternative suppliers would be able to offer efficient
alternative means of conveying baggage from the
Terminal to the ramp and vice versa. FAG’s mono-
poly in this area is accordingly not challenged.

(66)

FAG argued that the complementarity of the provi-
sion of ramp-handling services with respect to the
provision of airport facilities for the landing and
take-off of aircraft is evidence against the existence
of two separate markets and that the fact that inde-

A.2.3. The dominant position

(69) As sole supplier of the services concerned, FAG
holds a dominant position on the market for the
provision of ramp-handling services at Frankfurt
airport. Potential alternative suppliers are not in a
position to assail FAG’s monopoly as long as the
airport operator continues to deny them access to
the ramp where these services have to take place.

(1)

[1991] ECR II-1439, at paragraphs 65 to 69.

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B. ABUSE OF A DOMINANT POSITION

neighbouring but
handling services.

separate market

for

ramp-

(70)

(71)

(72)

B.1. Description of the abuse

FAG holds a dominant position on the market for
the provision of airport facilities for the landing
and take-off of aircraft. The provision of ramp-
handling services is complementary or ancillary in
that respect and constitutes a neighbouring but
separate market (see above).

In its T(cid:130)l(cid:130)marketing case (1), the Court of Justice
ruled that ‘an abuse within the meaning of Article
86 of the EC Treaty is committed where, without
any objective necessity, an undertaking holding a
dominant position on a particular market reserves
to itself or to an undertaking belonging to the same
group an ancillary activity which might be carried
out by another undertaking as part of its activities
on a neighbouring but separate market, with the
possibility of eliminating all competition from such
undertaking’.

1992

Similarly, the Court has consistently held — for
example, in its judgments of 31 December 1991 in
Case-C-18/88 RTT v GB-INNO-BM (2) and 17
November
in Joined Cases C-271/90,
C-281/90 and C-289/90 Spain v Commission (3)
that the extension of a monopoly in a given market
to a neighbouring market, without any objective
justification, is prohibited as such by Article 86, or
in conjunction with Article 86,
by Article 90(1)
where that extension results
from a measure
adopted by a State.

facilities

its power as exclusive
FAG has made use of
to deny potential
provider of airport
competitors (in the market
for the provision of
ramp-handling services) access to the ramp. FAG
has thereby prevented potential suppliers of ramp-
handling services from entering the market for the
provision of those services. This applies both with
regard to airlines and to independent suppliers.
FAG has thereby monopolised the market for the
provision of ramp-handling services. In deciding to
retain for
ramp-handling
services at Frankfurt airport, FAG has extended its
dominant position on the market for the provision
facilities to the
of airport

landing and take-off

the market

itself

for

(1)
(2)
(3)

[1985] ECR 3261.
[1991] ECR I-5941, at paragraph 24.
[1992] ECR I-5833, at paragraph 36.

FAG has furthermore made use of its power as
exclusive provider of airport
to deny
airlines the right to self-handle. FAG has thereby
obliged the users of its airport facilities also to
purchase from it the ramp-handling services that
they need.

facilities

(73)

In the absence of objective necessity (see below),
such behaviour infringes Article 86 of the Treaty.

B.2. Objective justification

(74)

FAG seeks to justify the extension of its dominant
position to ramp handling by four main arguments:
congestion of the airport, property right, organisa-
tional right and historical right.

(75)

(76)

B.2.1.

Space and capacity constraints

B.2.1.1. FAG’s argument

FAG argued during the proceedings that its refusal
to authorise self-handling and independent ramp-
handlers was objectively justified by the lack of
space at the airport: on the one hand, because there
was not enough parking space for
the various
suppliers’ items of equipment and, on the other,
because traffic density would become too great as a
result of
the inadequate runway system, which
would have repercussions on safety and Minimum
Connection Time (MCT).

reports

experts’

technical

show that

FAG’s argument is not well-founded. In the first
place (see paragraphs 77 to 85), that is so because
the
the
constraints on space at Frankfurt are not such as to
make it impossible to authorise self-handling or
the admission of independent ramp-handlers (with
the cul-de-sac which
the exception, however, of
forms the eastern part of Terminal 1, where the
presence of several service providers could create
traffic congestion). Secondly (see paragraph 86 ff), it
is so because, even supposing that such constraints
do exist, they would not be insurmountable.

B.2.1.2. Technical assessment of the arguments put

forward by FAG

(77)

It appears from the various reports submitted that
the arguments put forward by FAG are not substan-
tiated to such an extent as to justify FAG’s mono-
poly on the ramp.

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— in particular,

there

enough equipment
is
parking space on the apron at Frankfurt airport
to admit competition in the provision of ramp-
handling services; and safety and MCT will not
be affected by the introduction of competition
on the ramp,

— however, the core of Terminal 1 is congested
and likely to remain so. Admission of competi-
tion in this area (or part of this area) could
addition,
prove
physical
In
constraints may hinder
the coexistence of
‘extensive’ self-handling and independent third-
party handling.

problematic.

(a) Parking space for the equipment

(78)

The estimates of the balance between space av-
ailable and space requirements in the event that
self-handling and/or competition is admitted at
Frankfurt airport depends heavily on the assump-
tions made by the experts (particularly in terms of
client distribution among the handlers) and on the
period during which the evaluations were done
(owing to the continuous works being carried out
on the apron). It is therefore not surprising that the
various
submitted to the Commission
provide estimates which are very different from one
another.

reports

In practice, however,
estimates
ranges:

it appears that the various
are comprised within the following

— space requirements would range (after correc-
tion of calculation failures) between 104 000
m2 (1)
additional
handler) (2) or [ . . . ] m2
(with two additional
handlers) (3),

and [ . . . ] m2

(with one

the equipment

that 10 % of
is being used to
handle aircraft or passengers, in an airport where
according to the airport operator there are no off-
peak periods.

is

to

some

amounted

surprising for

In addition, it appears from paragraphs 36 to 46
that in reality space requirements are much lower
and that space available is higher than in this worst
case. NACO estimates are based on the assumption
that the additional gross space requirements of an
independent handler would amount to some [ . . . ]
m2 ( [ . . . ] ) (6) whereas Delta’s additional gross space
requirements
[ . . . ] m2
( [ . . . ] ) (7) before its flights were reduced. This
divergence between the impact of Delta and that of
an independent handler
two
reasons. First, because the independent handler’s
and Delta’s respective market shares at their res-
pective peaks are quite similar (respectively 12,4 %
and 13,4 %) as estimated by NACO) and because
the overall level of space required is linked to the
the peak. Secondly, because
market
whereas Delta did not operate during the afternoon
(so that it had to park all its equipment at the same
time) an independent handler would operate during
its
the whole day (which implies that some of
equipment would not need to be parked). Cons-
equently, such handler’s gross parking require-
ments should — all other things being equal — be
lower than Delta’s.

share at

(80)

This technical assessment is further sustained by
the following empirical evidence:

— First, the withdrawal of Delta from the self-
handling business frees sufficient space to allow
the admission of at
least one independent
handler.

— space available for parking equipment would
range (after correction of calculation errors)
between [ . . . ] m2 (4) and 164 000 m2 (5).

(79)

This implies that, in the worst case (that is, using
the figures put forward by NACO), the space av-
ailable would allow the parking of 90 % of all the
equipment present at Frankfurt airport if one addi-
tional handler were admitted ([ . . . ]). This coverage
is far more than sufficient, since it is very unlikely
that during the day there is any period when less

(1) Estimate by Cranfield, ref. paragraphs 34 and 35.
(2) Estimate by NACO 5 correction, ref. paragraphs 36 to 39.
(3) Estimate by Fraunhofer, ref. paragraphs 32 and 33.
(4) Estimate by NACO, ref. paragraphs 32 and 33.
(5) Estimate by Cranfield 5 correction, ref. paragraphs 45 and

46.

Delta airlines exercised its right to self-handling
until mid-1997. Delta’s equipment was suffi-
cient to handle 13 flights per hour (compared
to FAG equipment which is
to
handle 75 flights per hour (8)). Unlike FAG’s
the whole of Delta’s handling
equipment,
equipment had to be parked during the after-
noon when Delta was not operating.

sufficient

Delta has now stopped self-handling. As a
result,
could be
admitted, because of the three following con-
the space Delta occupied
siderations. First,

an independent handler

(6) NACO 27. 10. 1995 pp. 32-33.
(7) NACO 14. 5. 1997, p. 2.
(8) NACO 27. 10. 1995, p. 5.

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could be utilised to admit an independent
handler. Secondly,
the latter would use the
space available in a more efficient way (since an
independent handler would not operate only
from 8 a.m. to 2 p.m. but throughout the day).
Thirdly,
this handler will
reduce FAG’s handling business and will subse-
quently lead to a reduction of
the space
required by FAG to park its own equipment.

the presence of

that

statement
justify the
monopoly is not necessarily the most accurate
one.

space constraints

(81)

It therefore appears that FAG’s monopoly on the
ramp cannot be justified by a lack of equipment
parking areas.

This evaluation is not contradicted by the fact
that Delta’s equipment served only specific
planes and not wide-body aircraft
such as
B747s,

(b) Traffic density

(82)

The studies submitted by the experts appointed by
the Commission concluded that:

— Secondly,

the

at Frankfurt
limiting factor
airport is the runway capacity and not the stand
capacity (it is rather the number of gate stands
as opposed to remote stands that may constitute
a problem) (1). This evidence is supported inter
alia by the fact that remote stands are not fully
utilised during the day, even at peak hours (as
an example, Fraunhofer’s flight plan simulation
show that stands V167 to V173 are utilised less
than once a week). This means that closing a
certain number of stands (which would provide
additional parking space) would not lead to a
reduction in airport capacity,

— the admission of competition on the ramp will
not result in a significant increase in the level
of traffic,

— the presence of a second handler with a small
market share in the core of Terminal 1 may
lead to congestion problems,

— the reduced dependence on remote stands will

result in a reduction of traffic.

It therefore appears that neither traffic density nor
the safety level would be appreciably affected by
the admission of self-handling or competition on
the ramp in most of the airport.

— Thirdly, the supposed lack of space invoked by
FAG could easily have been overcome if FAG
had taken into account the need for space to
park handling equipment when it re-designed
the airport layout and had allocated some of the
space that
recently became available (Little
League area, USAF area, etc.) to parking areas
(see below),

(83)

The situation is different as regards the core of
Terminal 1, where it appears that the presence of
more than one handler in each of the two culs de
sac might result in major problems. However, the
latter should not be interpreted as a justification for
FAG’s monopoly in the whole of that Terminal,
but only as a justification of FAG’s monopoly in
the area lying between Stands B42 and C15.

— Finally, one should take note that, when both
FAG and Delta were providing ramp-handling
services, the airport was operational and main-
tained its high standards of quality despite the
fact that the balance of space available versus
space required showed a deficit (of [ . . . ] m2
according to the latest NACO report (2)). This
demonstrates the fact that a negative balance
does not necessarily mean that a certain situ-
ation is not possible. Accordingly, the ‘mathem-
atical’ approach proposed by FAG to support its

Deutsche Lufthansa has been allocated to the
western part of Terminal 1 (that is to say, all the
remote stands of Terminal 1, Pier A and the
Western edge of Pier B) on an almost exclusive
basis. According to the flight plan simulation
submitted by FAG (3), [ . . . ] % of the movements in
that area are attributable to Lufthansa and Condor,
while other airlines account for [ . . . ] weekly move-
ments only (approximately one movement every
three days on each stand in this area). Conversely,
Lufthansa flights outside his area are very limited,
with the exception of stand B2, which is almost
fully allocated to Lufthansa.

(1) Source: Cranfield report, June 1997, p. 15.
(2) NACO 14. 5. 1997, p. 2.

(3) Fraunhofer 27 June 1997, last Annex.

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This means that in this area essentially only one
handler would operate in any case (be it FAG, an
independent handler or Lufthansa as a selfhandler).
Accordingly, there are no technical obstacles for
Lufthansa to be handled by a different handler than
the one operating in the Eastern part of Terminal
1.

(c) MCT

B.2.1.3. Legal assessment of

the arguments put

forward by FAG

(86)

In addition to not being borne out by the facts, the
arguments put forward by FAG to justify its mono-
poly (namely the impossibility of admitting com-
petitors to the ramp because of the lack of space)
are not such as to constitute an objective justifica-
tion within the meaning of the Court’s judgments,
since there are solutions which would allow any
lack of space to be overcome.

(84)

The MCT will not be affected by the admission of
competition on the ramp.

(87)

First, as described above, the traffic density will not
be affected by competition (and therefore will not
affect the passengers’ and luggage travel time on
the apron).

as

the

regards

luggage,

Secondly,
automatic
conveyor system will continue to play its central
role in achieving the MCT. The independent
handlers and self-handlers should have access to
this central infrastructure, as is the case in several
other European airports. The presence of competi-
tion on the ramp will not affect the efficiency of
the conveyor system, in particular having regard to
the fact
the
system will remain in FAG’s hands.

the loading and unloading of

that

Thirdly, MCT at Frankfurt airport
is primarily
dictated by the time required by the passenger to
move from one gate to the other. The MCT is easy
to achieve when a passenger transits within the
to achieve
same terminal, but
when the passenger arrives at a remote stand, and
has
to change terminal. This consideration is
clearly independent from the number of handlers
on the ramp.

is more difficult

(d) Self-handling

(85)

Self-handling may have a cost in terms of space
requirements. This is particularly true when the
self-handling airline flights are not evenly dis-
tributed throughout the day. It is therefore con-
ceivable that FAG may limit
to self-
handle when it can be proved that such a self-han-
dler would render it impossible to admit an inde-
third-party handler. This does not,
pendent
however, mean that FAG would be justified in
prohibiting self-handling extensively, but that each
situation should be assessed on a case-by-case basis.

the right

to be real)

FAG has maintained that its refusal to authorise
self-handling and to admit independent handlers
was justified by the lack of space at the airport.
this constraint
However, as FAG itself admits,
(supposing it
insurmountable.
is not
Following the communication of the statement of
objections in 1994, FAG, which had been informed
of the fact that its monopoly could infringe Article
the Treaty, should therefore have taken
86 of
appropriate measures to solve the problems asso-
ciated with the lack of space at the airport, for
example:

— FAG could have carried out adjustments to the
existing infrastructure. This option was put
forward by FAG itself in its reply to the state-
ment of objections (1), but was not put
into
effect by FAG, notably because of the cost of
the necessary investment (DM 35 million to
DM 70 million), which would be passed on to
airport users. On the contrary, FAG stated (2)
that the airport had been designed and built
with FAG’s monopoly in mind and it had
continued accordingly when successive adjust-
ments were carried out,

— FAG could have closed a limited number of
stands (2, 3 and 4) in order to obtain the neces-
sary space (see above). This option was not
pursued because,
such
closure would have led to the loss of [ . . . ] slots,
to the detriment of airport users,

according to FAG,

— More recently, FAG could have avoided re-
ducing the space available for parking by more
than [ . . . ] m2 (over the period 1995-1997), as a
result of adjustment work on the airport, and by
more than [ . . . ] m2, lost through the creation of
buffer zones for cargo, following the relocation
of cargo-handling activities to the south.

(1) Case IV/34.801: FAG’s observations on the Commission’s

(2) Case IV/34.801: FAG’s observations on the Commission’s

statement of objections, p. 44.

statement of objections, p. 21.

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FAG could have allocated to ramp-handling
activities part of the Little League area, which
had recently become available, instead of alloc-
ating it to USAF Mail. Alternatively, FAG could
have given over to handling services part of the
area which is occupied in the freight area,
instead of allocating it to Lufthansa (while the
rest of freight activity moved to the southern
area given up by the USAF).

(88)

Thus, FAG’s decision not to authorise self-handling
and not to admit independent handlers is not the
result of an overriding need, but was a matter of
choice of FAG, which did not take the measures
which would have obviated the constraints imposed
by the lack of space of the airport.

(89)

(90)

(91)

B.2.2. Property right

FAG’s decision not to open up a market for the
provision of ramp-handling services is not justified
by the consideration that it is the owner of the
airport and as such is entitled to determine to what
use its property is put.

In its ruling in Case 44/79 Hauer v. Land Rhein-
land-Pfalz of 13 December 1979 (1), the Court of
Justice has acknowledged the existence of a funda-
mental right to property also in the Community
context. However, the Court also declared that it is
guaranteed in the Community legal order in ac-
cordance with the ideas common to the constitu-
tions of the Member States. In this context, the
Court found that in the constitutions of all Member
States it is recognized that the exercice of the right
to property may be restricted in the general interest
and to the extent necessary in that regard.

The competition rules of the EC Treaty may ac-
cordingly be considered to constitute restrictions
on the right of property which correspond to objec-
tives of general
interest pursued by the Com-
munity.

instance,

any potential

In this
independent
operator is obliged to encroach (against remunera-
tion) on FAG’s right to property, because of the
lack of alternatives. Ramp-handling services can be
carried out only on the apron itself, since it is not
to leave the airport area to
feasible for aircraft
to
receive such services. Limiting FAG’s
property would therefore be neither dispropor-

right

(1)

[1979] ECR 3727, paragraphs 17 ff.

(92)

(93)

(94)

tionate nor excessive, but simply the result of the
lack of alternatives.

The application of Article 86 of the EC Treaty
would not constitute an excessive and intolerable
interference with the rights of FAG as owner of
Frankfurt airport, violating the very substance of its
right to property: the imposition of an obligation
on FAG to open up the market for the provision of
ramp-handling services does not deprive it of the
property as such, but restricts the exercise of those
rights to what is compatible with the competition
rules of the EC Treaty. It should be noted in par-
ticular that the application of Article 86 would not
prevent FAG from continuing to offer ramp-han-
dling services in competition with other suppliers
of those services. It could also ask ground-handling
operators to make adequate payment for use of the
facilities provided by it in the form of rents, as long
as such amounts were within the limits imposed by
the competition rules.

B.2.3. Organizational right

FAG’s decision not to open up the market for the
provision of ramp-handling services is not justified
by the consideration that it is the airport operator
and as such is entitled to determine how to or-
ganise the activities that
take place within the
airport area. The airport must exercise its organisa-
tional
in accordance with the rules on
rights
competition.

FAG has argued that its decision not to open up
for the provision of ramp-handling
the market
services is based on its organisational rights as an
undertaking and its obligation under Article 45
LuftVZO to operate the airport properly and safely
(see paragraph 4). According to FAG, this obliga-
tion consolidates its organisational rights as a duty
to organise the airport in an optimal way. The latter
includes the duty to ensure an efficient organisa-
tion of ground-handling services.

In this context, FAG submitted that ramp handling
consists of services that must be regulated, or-
ganised and controlled by the airport operator. This
does not mean that
ramp handling must be
performed by the airport operator. It is sufficient to
point out that the airport operator is in a position
to formulate and dictate the rules with which any
service provider will have to comply and that, in
any event, once Directive 96/67/EC is in force and
effect such rules will be laid down by the com-
petent Member State.

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(95)

(96)

FAG also submitted that since ramp handling is a
complementary function to the landing and take-
off of aircraft and subsequently influences the
overall quality of
the service provided by the
airport, the airport operator has the obligation to
control these activities. Again, this does not mean
that the airport operator may retain these activities
for itself, since the airport operator has the means
to impose on competitors the rules that they will
be bound to follow.

Finally, FAG argued that its monopoly on ramp-
handling serves the interests of the airport cus-
tomers, since FAG supplies its services on a non-
discriminatory basis. This point
is not relevant
since, independently of any consideration regarding
the alleged bias of potential competitors, it is clear
that the opening-up to competition of the market
of ramp-handling services would not prevent FAG
from continuing to supply its services on a non-
discriminatory basis.

self-handling or third-party handling. In that case,
FAG’s monopoly is no longer the result of market
conditions, but is a decision taken by FAG itself (as
an airport operator in a dominant position on the
market for the provision of airport facilities for the
take-off and landing of aircraft) to reserve for itself
the neighbouring market
ramp-handling
services.

for

The fact that, in contrast to CLT in the T(cid:130)l(cid:130)mar-
keting case, FAG held a dominant position on the
to committing the
ramp-handling market prior
infringement cannot be adduced as grounds for
arguing that FAG’s decision to reserve for itself the
market
in question by denying ramp access to
potential competitors does not constitute an abuse.
The objective pursued would then not be the
extension of a dominant position, but the protec-
tion of a dominant position by abusive means.

B.2.4. Historical rights

B.3. Article 90(2) of the EC Treaty

(97)

FAG has also argued that its monopoly on the
ramp-handling market derives not from any exten-
sion of a dominant position, but from historical
developments.

(99)

its presence as an exclusive
FAG stresses that
supplier of ground-handling services is not
the
result of diversification, but that FAG has been
supplying this type of services since the immediate
post-war period. At that time, Frankfurt airport had
just been rebuilt and, as was the case with all
German airports, ramp-handling was provided only
by the airport itself, since there was nobody else to
do so. According to FAG, the question of access by
potential competitors to the ramp-handling market
arose only when it became apparent
the
market offered attractive economic opportunities
that involved little risk.

that

(98)

This argument cannot in any way justify FAG’s
decision to reserve for itself the market for ramp-
handling servives.

Given the lack of alternative would-be suppliers,
FAG’s monopoly on the ramp-handling services
market was the result of market conditions and was
therefore not illegal. However, an infringement of
Article 86 within the meaning of the T(cid:130)l(cid:130)market-
ing judgment (1) arises as soon as FAG’s monopoly
is maintained by a refusal on its part to authorise

(1)

[1985] ECR 3261.

FAG maintained, in its reply to the statement of
objections of 10 May 1994, that, in its capacity as
operator of Frankfurt airport, it had been entrusted
with the operation of services of general economic
interest within the meaning of Article 90(2) of the
Treaty. FAG went on to argue that the revenue
generated by ground-handling services are neces-
sary to its financial equilibrium and, hence, neces-
sary for maintaining the provisions of the service of
general economic interest. Such an exception was,
it argued, accepted by the Court in its judgments in
Cases C-320/91 Corbeau of 19 May 1993 (2) and
C-393/92 Almelo of 27 April 1994 (3).

that
is a provision which permits,

(100) Regarding the scope of Article 90(2) of the Treaty,
the Court held, in its judgment in Case 127/73,
BRT v. SABAM of 21 March 1974 (4),
‘as
Article 90(2)
in
certain circumstances, derogation from the rules of
the Treaty, there must be a strict definition of those
undertakings which can take advantage of it’ and
that ‘private undertakings may come under that
provision, but
the must be entrusted with the
operation of services of general economic interest
by an act of the public authority’ and that ‘that is
not the position in the case of an undertaking to
which the State has not assigned any task and
which manages private interests’.

(2)
(3)
(4)

[1993] ECR I-2533.
[1994] ECR I-1477.
[1974] ECR 313, at paragraphs 19, 20 and 23.

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Furthermore, the Court has also held in Case 41/83
Italy v. Commission of 20 March 1985 (1) that ‘the
application of Article 90(2) of the Treaty is not left
to the discretion of the Member State which has
entrusted an undertaking with the operation of a
service of general economic interest. Article 90(3)
assigns to the Commission the task of monitoring
such matters, under the supervision of the Court’.

In the light of these considerations, FAG’s argu-
ments do not appear to be well-founded.

for

the market

In addition, it has not been demonstrated that the
opening-up of
ramp-handling
services compromises the economic equilibrium of
FAG. Not only has FAG not provided evidence of
the unavoidability of financial losses resulting from
the ramp-
the opening-up to competition of
handling services market, nor
such losses
that
would be incurred through the loss of FAG’s
monopoly; it is also clear that other airports are
able to achieve financial equilibrium even though
they allow competition on the ramp-handling
services market.

(101) The German authorities have not given FAG a
monopoly on ramp-handling services, nor have
they entrusted it with a service task in the general
economic interest as regards the provision of such
the Flughafenbenut-
services. On the contrary,
zungsordnung itself provides that the services may
be carried out by entities other than the airport
itself.

Consequently, the financial-equilibrium argument
put forward by FAG, namely the offsetting of losses
in the landing and take-off
facilities sector by
profits in the ground-handling sector, is not rel-
evant in this context.

B.4 The consequences of Directive 96/67/EC

As regards the market for the supply of airport fa-
cilities for aircraft take-off and landing, it is evident
from the rules and regulations governing operations
at Frankfurt airport that the German authorities,
which authorised FAG to build and manage the
airport, did not impose on it any public service
obligations
exceptions
that would allow the
provided for in Article 90(2) of the Treaty to be
pleaded.

(103) FAG has argued that its refusal to authorise self-
handling and to admit independent ramp-handlers
is justified following the adoption of Directive
96/67/EC and Germany’s
29
September 1997 to exempt it from the liberalisa-
tion requirements stemming from the Directive.

decisions

of

FAG cannot therefore argue that its monopoly is
justified by State measures,
the exclusion of all
competition on the ramp not being due to the
Member State, but being the result of FAG’s own
decision.

(104)

(102) At all events, in its judgment in the Corbeau (2)
case, the Court stated that ‘the exclusion of com-
petition is not justified as regards specific services
dissociable from the service of general
interest
which meet special needs ( . . . ) and which call for
certain additional services ( . . . ), in so far as such
specific services, by their nature and the conditions
in which they are offered ( . . . ), do not compromise
the economic equilibrium of the service of general
economic interest performed by the holder of the
exclusive right’.

In this instance,
the ramp-handling services are
specific services which are clearly dissociable from
the service consisting of the provision of airport
facilities for aircraft take-off and landing.

(1)
(2)

[1985] ECR 873, at paragraph 30.
[1993] ECR I-2533, at paragraph 19.

This argument cannot be accepted.

In the first place, Germany’s decision of 29
take effect before 20
September 1997 will not
January 1998 (three months after
the date on
which the Commission received the Member
State’s
that decision will
become effective only if the Commission does not
oppose it under Article 9(5) of the Directive, as the
German State clearly indicated in its communica-
tion to the Commission (3).

letter). Furthermore,

It should be noted in this respect that the Commis-
sion is adopting today a Decision pursuant
to
Article 9(5) of Directive 96/67/EC requiring
Germany to amend substantially the scope of its
decision granting an exemption to FAG. In prac-
tice,
the scope of Germany’s decision of 29
September 1997 will be restricted (as far as the
analysis under this Decision is concerned) to the
reserving for FAG, until 31 December 2000, of the
market for third-party handling in the eastern cul-
de-sac in Terminal 1.

(3)

‘die Freistellungsentscheidung wird gegen(cid:129)ber dem Flughafen
Frankfurt wegen der damit verbundenen Rechtsfolgen erst
dann wirksam, wenn die Zustimmung der Kommission vor-
liegt’, notice of the Federal German Government to the Com-
mission, dated 29 September 1997.

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(105)

In the second place, Directive 96/67/EC is without
prejudice to the application of the rules laid down
in the Treaty, as is stated in the twenty-eighth
recital of the Directive itself, which stipulates that
the Directive ‘does not affect the application of the
rules of the Treaty’ and that ‘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’.

C. EFFECT ON TRADE BETWEEN MEMBER STATES

(106) Ramp-handling services are offered to airlines
operating intra-Community air transport services.
The cost of ramp-handling services is liable to
affect
the cost of services for the transport of
passengers and goods and to bring about alterations
in the levels and direction of transport flows in the
Community.

Therefore, the abuse by FAG of its dominant posi-
tion is liable to affect trade between Member States.

the provision of

(107) FAG has argued that the fact that FAG retains for
ramp-handling services
itself
would affect trade between Member States only to
the extent that the prices charged by it for the
provision of such services were too high. This argu-
ment is not relevant since an effect on inter-State
trade is not dependent on whether prices for the
relevant services are too high or not,

HAS ADOPTED THIS DECISION:

Article 1

Flughafen Frankfurt/Main AG (FAG) has abused its dom-
inant position in breach of Article 86 of the EC Treaty by

denying, without objective justification, potential third-
party handlers access to the ramp and airport users the
right to self-handle, thereby reserving for itself the market
for the provision of ramp-handling services at Frankfurt
airport. This finding does not apply to the eastern part of
Pier B, from Gate B2 to Gate B42, nor to Pier C up to
Gate C15, where FAG’s monopoly is objectively justifi-
able.

Article 2

FAG shall bring the infringement referred to in Article 1
to an end.

For that purpose, FAG shall submit to the Commission
within three months of the notification of this Decision a
precise plan for the reorganisation of the market for the
provision of ramp-handling services at Frankfurt airport
so as to open up market access for air carriers and inde-
pendent providers of ramp-handling services.

Article 3

This Decision is addressed to:

Flughafen Frankfurt/Main AG
Flughafen Frankfurt
D-60547 Frankfurt am Main

Done at Brussels, 14 January 1998.

For the Commission

Karel VAN MIERT

Member of the Commission