98/387/EC: Commission Decision of 14 January 1998 on the application of Article 9 of Council Directive 96/67/EC to Frankfurt Airport (Flughafen Frankfurt/Main AG) (notified under document number C(1998) 67) (Only the German text is authentic) (Text with EEA relevance)
Date: 1998-01-14
Institutions: European Commission
Subjects: Germany, airport, derogation from EU law, market access, provision of services, transport infrastructure

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Official Journal of the European Communities

18. 6. 98

COMMISSION

COMMISSION DECISION

of 14 January 1998

on the application of Article 9 of Council Directive 96/67/EC to Frankfurt
Airport (Flughafen Frankfurt/Main AG)

(notified under document number C(1998) 67)

(Only the German text is authentic)

(Text with EEA relevance)

(98/387/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Directive 96/67/EC of 15
October 1996 on access to the groundhandling market at
Community airports (1), and in particular Article 9(5)
thereof,

After consulting the Advisory Committee established
thereunder,

Whereas:

I. SCOPE OF THE EXEMPTION NOTIFIED BY GER-

MANY

1. The notification presented by the German

authorities

By letter of 8 April 1997, received by the Commission on
10 April 1997, the German authorities notified a com-
munication from the Government of
the Federal
Republic of Germany dated 27 March 1997 granting
Frankfurt airport
the
following exemption:

(Flughafen Frankfurt/Main AG)

(a)

to allow the airport to ban self-handling for the cat-
egories of services referred to in points 3, 5.4, 5.5 and
5.6 in the Annex to Directive 96/67/EC (the Dir-
the physical
ective) and self-handling as
handling of
incoming,
outgoing or in transit, between the air terminal and
the aircraft. This exemption, granted on the basis of

freight and mail, whether

regards

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

Article 9(1)(d) of the Directive, ran from 1 January
1998;

(b) to reserve to Frankfurt airport the monopoly on the
provision to third parties of the categories of services
referred to in points 3, 5.4, 5.5 and 5.6 in the Annex
to the Directive, and also for the handling of freight
and mail, whether incoming, outgoing or in transit,
between the air terminal and the aircraft. This exemp-
tion, granted on the basis of Article 9(1)(b) of the
Directive, runs from 1 January 1999.

By letter dated 13 June 1997, the Commission informed
the German authorities that this notification could not be
accepted, in particular on the grounds that:

(a)

the scope of the exemption granted had not been
precisely defined, which allowed the airport alone to
decide whether or not to ban self-handling;

(b) no plan aimed to overcome the problems cited had

been submitted.

By letter dated 15 October 1997,
received by the
Commission on 20 October 1997, and supplemented by a
letter dated 9 December 1997, Germany notified a further
communication dated 29 September 1997 supplementing
that of 27 March 1997 and granting the following exemp-
tion:

(a)

to ban self-handling, save in the cases already author-
ised prior to the exemption decision, for the categ-
ories of services referred to in points 3, 5.4, 5.5 and 5.6
in the Annex to the Directive, and to ban self-
handling as regards the handling of freight and mail,

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Official Journal of the European Communities

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whether incoming, outgoing or in transit, between the
air terminal and the aircraft. This exemption, granted
on the basis of Article 9(1)(d) of the Directive, ran for
three years starting on 1 January 1998;

the German
tion in accordance with paragraph 3 of
Verordnung (cid:129)ber Bodenabfertigungsdienste auf Flug-
pl(cid:132)tzen und zur (cid:142)nderung weiterer luftrechtlicher Vor-
schriften transposing the Directive into national law.

(b) to reserve to Frankfurt airport the monopoly on the
provision to third parties of the categories of services
referred to in points 3, 5.4, 5.5 and 5.6 in the Annex
to the Directive, and also for the handling of freight
and mail, whether incoming, outgoing or in transit,
between the air terminal and the aircraft. This exemp-
tion, granted on the basis of Article 9(1)(b) of the
Directive, runs for two years starting on 1 January
1999.

Pursuant to Article 9(3) of the Directive, the Commission
published a summary of the said notification in the Offi-
cial Journal of the European Communities (1) and invited
interested parties to submit comments.

Pursuant to Article 9(5) of the Directive, Germany was
consulted by the Commission on its draft evaluation on
17 December 1997. On 18 and 19 December 1997 the
German authorities replied to this consultation by written
observations.

Basis of the exemption

The general
rules for access to the groundhandling
services market are set out in Articles 6 and 7 of the
Directive. These provisions clearly state the principle that
most categories of groundhandling services should be
opened up to the maximum possible extent. However,
because of the specific situation and role of an airport,
and in particular constraints of safety and security, but
also considerations of space and capacity which can arise
in some parts of most airports, the Directive does not
demand total freedom but requires a minimum degree of
opening-up to third parties of both self-handling and
services for four categories of services located airside (cid:190)
that is to say, in a particularly sensitive area of the airport.
These
concern ramp handling, baggage
handling,
fuel handling and certain freight and mail
handling operations.

categories

that,

the fact

The Directive also takes account of
in
certain very special cases, severe space and capacity prob-
lems may prevent the opening-up of the market to the
degree provided for. In such cases, exemptions may be
granted on a temporary basis to give the airports the time
to overcome the constraints. Such exemptions can there-
fore be only exceptional in nature and are not intended to
automatically give airports an extra transitional period in
addition to that already provided for in Article 1 of the
Directive.

2. Current situation at Frankfurt airport

2.1. Presentation of the airport

Frankfurt airport is bounded on the north and east by
motorways, on the south by railways and on the west by a
forest which is protected for environmental reasons. No
extension of the airport site is therefore conceivable.

The airport’s runway system consists of
two parallel
(north/south) runways and a third runway reserved exclu-
sively for take-off (west) lying almost at right angles to
them. Most of the airport buildings are situated to the
north of the two main runways, the southern part having
hitherto been largely reserved for the US Air Force. The
airport recently recovered control of part of this area,
which it has converted into freight areas.

The airport buildings extend along the north runway for a
distance of nearly six kilometres, and include the freight
buildings, the Lufthansa operations and freight buildings,
the fuel storage bunkers, Terminals 1 and 2 and the
German post office buildings. The north-eastern corner
accommodates the ‘little league' area and the area for
short-haul companies, which the airport recently regained
and which it has assigned to the USAF’s mail service.

The configuration of the two passenger terminals is rad-
ically different. Terminal 2 (divided into parts D and E) is
one long building, whereas the larger Terminal 1 is W-
shaped with three Piers A, B and C with culs-de-sac
between them.

The airport currently has 49 gate parking positions (36 in
Terminal 1 and 13 in Terminal 2) and 57 remote posi-
tions; groundhandling services for the remote positions
are generally combined with the same services for the
gate parking positions of the nearest terminal. It also has
eleven positions for short-haul flights and 15 for freight.
Thanks to the extension of Pier A of Terminal 1 and the
allocation of new positions in the corridor between
Terminals 1 and 2, the airport should have a total of 156
positions by the year 2000. This parking capacity is suffi-
cient to cope with the increase in capacity planned by
FAG for the coming years, which provides for an increase
in movements from 74 per hour in 1997 to 80 per hour
in 2000.

An exemption can be granted only on the basis of
specific space or capacity constraints. This is the basis on
which Germany has granted the abovementioned exemp-

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

2.2. Groundhandling services at the airport

Before the new rules laid down by the Directive were
introduced into German law,
the situation regarding
groundhandling services at Frankfurt airport was as
follows:

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(a)

for most of the services listed in the Annex to the
Directive and referred to in Articles 6(1) and 7(1)
thereof, the market for which should be opened up to
the maximum possible extent:

(i) self-handling was authorised; as regards the provi-
sion of services for third parties, airlines could use
either the services of other carriers or the airport
services.

(ii) groundhandling services provided by independent
service suppliers were also authorised, with the
exception of registration services.

in
(b) for the services listed in Articles 6(2) and 7(2),
respect of which the Directive provides that
the
market must normally be opened up to at least two
service suppliers and two self-handling users:

(i) self-handling was prohibited, except in the case of
an express mail
for historic
reasons, had been authorised to perform certain
loading and unloading operations;

integrator who,

(ii) the airport had a monopoly on the provision to
third parties of these services, with the exception
of certain services (fuel and oil handling, catering
services, de-icing, snow removal) which the airport
does not perform itself but contracts out to service
suppliers.

The exemption granted by Germany concerns services
referred to in Articles 6(2) and 7(2) of the Directive, in
respect of which the Member States are already permitted
to limit the number of service suppliers or self-handling
users to no fewer than two.

The German decision allows the situation which existed
prior to the entry into force of the Directive to continue.
It restricts the number of parties involved even more than
is intended by the Directive, as it prohibits self-handling
and reserves to the airport alone the right to provide
groundhandling services to third parties. It covers self-
handling and handling for third parties of the following
services set out in the Annex to the Directive: baggage
handling (point 3), certain ramp-handling services (cid:190)
loading and unloading of aircraft
(point 5.4) and the
operation of appropriate units for engine-starting (point
5.5), the moving of aircraft (point 5.6), and freight and
mail handling as described in Articles 6(2) and 7(2) (point
4). The German authorities’ decision would therefore
open the market up to the extent provided for in the
Directive, namely to at least a second service-supplier and
to two self-handling airport users, only in respect of a
limited range of
ramp-handling services (cid:190) services
relating to aircraft marshalling, parking, communication
between the aircraft and the supplier of services, and the
transport and loading of food and beverages and (cid:190) for
freight and post services (cid:190) customs and administrative
formalities. There is to be a completely free market for
cleaning services.

2.3. Article 86 of the Treaty

On 20 July 1993 the companies KLM Royal Dutch
Airlines NV, Air France Compagnie Nationale SA, and
British Airways plc lodged a complaint with the Commis-
sion about the performance of groundhandling services at
Frankfurt airport, suggesting that the company Flughafen
Frankfurt/Main AG (FAG) had infringed Article 86 of the
Treaty.

The various studies and comments on this matter have
been communicated by the German authorities
in
support of
including the
exemption decision,
comments of FAG on the study carried out by Cranfield
University for the Commission.

the

II. CONSTRAINTS PLEADED BY GERMANY

The exemption granted by the German Government is
based principally on the problems of the space available
at the airport:

(a)

the impossibility for the airport of finding the space
needed to store additional groundhandling equip-
ment;

(b) the exacerbation of these space problems as a result of
the works currently being carried out at the airport.

Furthermore, the following implications of opening up
the market as envisaged in the Directive were cited:

(a)

the resulting reduction in capacity, particularly airside;

(b) the physical

impossibility of admitting a second

service supplier for baggage handling;

(c) the negative consequences on the quality of services

provided.

The exemption decision is based on the arguments and
studies presented by FAG, which are annexed to the
Decision, namely:

(cid:190) Netherlands Airport Consultants BV (NACO) study (I)

Vorfeldverkehr of 10 December 1993,

(cid:190) NACO study (II) Vorfeldverkehr und Flughafenka-

pazit(cid:132)t of 18 June 1994,

(cid:190) NACO study (III) Eine Zus(cid:132)tzliche Abfertigungsge-

sellschaft of 17 February 1995,

(cid:190) NACO study (IV) Eine Zus(cid:132)tzliche Abfertigungsge-
sellschaft, updated for the period 1997-2000, from 27
October 1995,

(cid:190) NACO study (IV), re-updated from 14 May 1997,

(cid:190) comments by NACO on the conclusions presented at
the hearing of 9 July 1997 as part of the procedure
referred to in paragraph 2.3 above, and sent by
Germany to the Commission on 30 October 1997,

(cid:190) several letters from FAG to the Commission dated 25

July,

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(cid:190) Fraunhofer-Institut f(cid:129)r Materialfluß und Logistik
(study I): Kapazit(cid:132)ts- und Qualit(cid:132)tsauswirkungen
einer Zulassung zus(cid:132)tzlicher Abfertiger auf dem
Vorfeld f(cid:129)r den Flughafen Frankfurt/Main of 1
August 1994,

(cid:190) Fraunhofer-Institut f(cid:129)r Materialfluß und Logistik
(study II): Kapazit(cid:132)ts- und Qualit(cid:132)tsauswirkungen
f(cid:129)r den Flughafen Frankfurt/Main durch die Zulas-
sung eines weiteren Abfertigers auf dem Vorfeld f(cid:129)r
die Jahre 1995/2000 of 16 February 1995.

1. The problems of space needed to store equip-

ment

The exemption decision is based on the lack of space for
parking the extra equipment of one or more users
carrying out self-handling, or additional service suppliers,
and the consequences of the work’s being carried out at
the airport.

1.1. The NACO and Fraunhofer studies

this

The NACO studies quantify the total space available at
148 000 m2,
adding
102 000 m2 of parking areas, 22 000 m2 of preparation
areas, 22 000 m2 of vehicle and equipment storage areas
and 2 000 m2 of ‘buffer zone'.

figure being obtained by

Of the 148 000 m2 available, FAG, which, since Delta
abandoned self-handling at the beginning of 1997,
is
currently the only service supplier, currently occupies
146 000 m2 for its own groundhandling requirements (1):
this estimate takes account of the fact that the airport
thus
currently provides all
including services provided for Delta
and services
provided for the companies which replaced Delta in
Terminal 2 when Delta substantially reduced its flights in
1997.

ramp handling services,

According to NACO, opening up the market to a second
service supplier would increase total space requirements
to 178 000 m2, that is, 32 000 m2 more than the space
currently occupied (146 000 m2), thus resulting in a short-
fall of 30 000 m2 in terms of the current data on space
available (148 000 m2).

Whereas the NACO figures relate to the entry of a second
the Fraunhofer figures are based on
service supplier,
opening up the market to two additional service suppliers
in Terminal 2. According to the Fraunhofer Institut, the
total space required would increase from 150 000 to
167 000 m2: at Terminal 2, the requirement for parking
areas would increase by 14 000 to 29 000 m2, whereas
only 18 000 m2 is available. Opening up these services

(1) These figures are arrived at by combining the equipment
deemed necessary in each case (monopoly or open market)
and the space occupied by each piece of equipment, increased
by a coefficient to allow for the space needed around each
piece of equipment and for manoeuvring it
(1,30 and 1,34
respectively, making a total of 1,75).

would have repercussions on Terminal 1: on account of
the structural space problems at Terminal 1, the space
hitherto borrowed from Terminal 2 would no longer be
available as it would be allocated to new service suppliers.

1.2. Works at the airport

The German decision is also based on the fact that the
works in progress at
the airport will exacerbate the
existing space problems.

The airport’s internal development plan provides for a
large number of works at the airport, including:

(a)

in Terminal 1, alterations to meet
standards;

the Schengen

(b) on the tarmac, the extension of Pier A (alpha) and the

fitting-out of the western part of the pier.

FAG maintains that this restructuring is justified by the
need to react to the increase in traffic.

According to FAG, these works will have repercussions at
two levels:

(a)

first, the new buildings will result in a loss of nearly
20 000 m2 of parking space,

(b) second, while the works are in progress, the space
needed to store the construction equipment and the
changes resulting from the works, particularly in
traffic around the works, will have temporary negative
repercussions in terms not only of the space available
but also of the traffic near a terminal which already
has serious difficulties.

2. The implications of opening up the market

According to Germany, the space available cannot be
extended either inside or outside the airport site. Thus the
current lack of space obliges FAG to manage all available
areas in an optimal manner. Opening up the market
would have repercussions on capacity management, the
organization of baggage handling and the quality of
services provided at Frankfurt airport.

2.1. Impossibility of extending the airport

FAG cannot use the wooded parts of the airport site
(229 ha) for environmental reasons, nor the areas to the
south still occupied by the USAF base, a total of nearly
170 ha with runway access.

Moreover, according to the German authorities,
the
absence of spare space cannot be overcome by extending
the airport site, which is limited to the north and the east
by the road network (A3 and A5 motorways) and to the
west and south by the forest, which acts as a protective
area against noise nuisance. The available area at the

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airport has increased by a factor of just 2,4 over 35 years,
while the number of passengers has increased by a factor
of 130, and there are no plans for development beyond
the current airport perimeter in either the short or long
term. The regional development plan clearly states that
airport capacity can be increased only within the current
geographical limits of the airport.

major European airports, and to which it attaches the
highest priority. According to NACO, the arrival of a
single additional operator would result in additional space
requirements of almost 32 000 m2, which would have to
be found by closing positions, causing the loss of 18 000
movements a year.

2.2. Optimal management of area available

2.4. Baggage handling

According to FAG, the lack of space combined with the
configuration of the airport installations means that two-
thirds of the aircraft positions are not gate parking posi-
tions, thus increasing the necessary traffic between the
positions and the terminals, which in itself increases the
need for space for traffic and for the parking of mobile
equipment.

Moreover,
the remote positions cannot be managed
entirely independently of each other. The lack of space
makes it impossible to handle two large-capacity aircraft
side by side; this in turn increases the amount of equip-
ment needed in the area and the amount of traffic on the
tarmac.

Finally, the German authorities claim that the number of
positions on the tarmac is not sufficient to accommodate
the traffic in a satisfactory manner. The limited number
of positions obliges the airport not only to use all posi-
tions without interruption, but also to treat every available
space as a position. Thus the airport works at full capacity
from 6 a.m. to 10 p.m., with no capacity in reserve.

2.3. Capacity management

According to the German authorities, FAG cannot satisfy
the current demand for capacity and intends to increase
capacity from 74 movements per hour in 1997 to 80
movements per hour in 2000, which will require addi-
tional positions.

Because of the large number of remote positions, FAG
expects the volume of service vehicle traffic to increase in
line with the number of movements. Vehicle traffic on
the tarmac is expected to increase by between 11 and
24 %, with a density of 250 movements per hour. More-
over, opening up the market in groundhandling services
would force the airport to close three areas on the north
side (seven positions). The consequences of opening up
the market would thus run counter to the airport’s efforts
to increase its capacity. FAG considers that allowing other
service suppliers would have a negative impact on the
proper operation of its electronic logistics system and on
capacity.

FAG points out that increasing its capacity is a commer-
cial choice of
importance, which should
enable the airport to maintain a high position among the

the highest

The documentation presented in support of the German
the
decision highlights the quality and efficiency of
airport’s baggage-handling system, particularly for luggage
in transit; Germany considers it impossible to maintain
this level if a second operator is admitted.

It points out that in addition to safety checks for passen-
the American
gers and random baggage inspection,
companies
the baggage
require 100 % control of
intended for their flights. This requirement entails opera-
tions which, if carried out by the carrier, take up time and
space. It is argued that the congestion of the baggage
retrieval halls does not permit admission of a second
operator.

2.5. Service quality

the exemption,

Because of the configuration of the airport installations,
which in particular only permit a third of flights to use
gate parking positions, large distances have to be covered
on the tarmac. According to the studies presented in
support of
the shortage of space for
storing groundhandling equipment obliges the airport to
park it on certain aircraft positions. According to these
studies, these problems can be overcome only by means
the various parties
of
involved, and opening up the market to other service
suppliers would have harmful effects on the quality of
services provided, particularly the minimum connecting
time of 45 minutes, which is a major element of Frankfurt
airport’s commercial policy.

interdependence of

the total

3. Views of the interested parties

In accordance with Article 9(3) of the Directive, interested
parties were invited to express their opinions. A number
of airlines recognised the quality of the services provided
at Frankfurt, but emphasised the high prices demanded
by the airport in its monopoly position. They consider the
space requirement figures put forward by Frankfurt to be
greatly exaggerated, and quote examples of companies
providing services to third parties for numerous flights
with half the space which Frankfurt claims will be needed
if a second service supplier is accepted. They also point

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out that when Delta carried out self-handling, it had only
8 000 m2 available and possessed enough equipment to
handle up to 10 % of the airport’s traffic. The airlines
therefore consider that the space needed for opening up
the market is less than the airport claims, and that it can
easily be found. They point out that some of the equip-
ment can be stored overnight on unoccupied positions,
which is common practice in numerous airports and
causes no particular problems. They object to the practice
whereby for many years all available space has been
systematically allocated to purposes other than ground-
handling.

III. EVALUATION OF THE EXEMPTION IN THE

LIGHT OF DIRECTIVE 96/67/EC

1. The rules in force concerning groundhandling

1.1. The scope for restricting access to the market

The Directive provides for the market to be opened up to
different extents as a function of
the way in which
groundhandling services are provided (self-handling or
service suppliers) and the level of traffic at the airport. In
view of the volume of traffic at Frankfurt airport, the latter
must, pursuant to Article 1 of the Directive, permit self-
handling from 1 January 1998 and open up the market to
service suppliers on 1 January 1999.

The general rules on market access for the categories of
groundhandling services covered by the exemption are
laid down in Articles 6(2) and 7(2) of the Directive. These
rules have been taken over by paragraph 3(2) of
the
German implementing rules. Under
those Articles,
Member States are permitted to restrict market access to
not less than two service suppliers and two self-handling
users, who must be chosen on the basis of objective,
transparent and non-discriminatory criteria.

Moreover, Article 6(4) of
the Directive provides that
airport users must have an effective choice between at
least two service suppliers, whatever part of the airport is
allocated to them.

However, where specific constraints of available space or
capacity, particularly as regards congestion or the rate of
space usage, make it impossible to open up the market or
permit self-handling to the extent provided for in the
Directive, the Member State concerned may, on the basis
of Article 9(1)(b), reserve the right to provide such ground-

handling services to a single supplier and/or, on the basis
of Article 9(1)(d), ban self-handling or restrict it to a single
user. However, Article 9(2) specifies that such an exemp-
tion must:

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

(b) incorporate a plan of appropriate measures to over-

come the difficulties.

Moreover, the exemption must not:

(a) unduly prejudice the aims of the Directive;

(b) give rise to distortions of competition;

(c) extend further than necessary.

The main purpose of the Directive is to liberalise ground-
handling services. Limitations imposed on third parties
amount to restrictions of those parties’ freedom to provide
services. By way of analogy with State measures restricting
the freedom to provide services, and as the Court of
Justice has held in its judgments of 25 July 1991 in Case
C-288/89, Mediawet (1)
and Case C-76/90, S(cid:132)ger v.
Dennemeyer (2), measures which are liable to exclude or
prohibit the activities of a provider of services even if they
apply without distinction to national providers of services
and to those of other Member States, must be justified by
overriding reasons relating to a non-economic public
interest and must in addition be proportionate to the
objective they pursue.

1.2. Procedure

the exemptions

Under Article 9(6),
relating to self-
handling granted under Article 9(1)(d) may not exceed a
duration of three years and may be renewed, while those
relating to service suppliers granted under Article 9(1)(b)
may not exceed a duration of two years, which may be
extended only for a single period of two years.

In accordance with Article 9(3) of
the
German authorities undertook to make the entry into
force of the exemption decision subject to a Commission
decision approving it.

the Directive,

(4) and (5),

In accordance with the procedure provided for in Article
9(3),
the Commission must examine the
exemption granted by the Member State and approve that
decision or oppose it. It may also require the Member
State to amend the extent of the exemption or restrict it
to those parts of the airport where the alleged constraints
have been proved to exist.

The Commission therefore considers that in its exam-
ination it must concentrate on the following three points:

(a)

the existence and extent of the space and capacity
constraints used to justify the exemption and the
impossibility of opening up the market to the degree
provided for in the Directive;

(1)
(2)

[1991] ECR I-4007.
[1991] ECR I-4221.

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18. 6. 98

(b) the plan of appropriate measures, which has to be
credible, whose implementation must be uncondi-
tional, and which must
include both measures to
which the airport has to commit itself and the time-
table for the implementation of those measures. In the
case of an exemption permitting the continuation of a
complete monopoly for certain categories of services
and allowing the various airport users neither a choice,
nor the possibility of self-handling with the exception
the user carrying out self-handling for historic
of
reasons, the Commission must examine very closely
the plan of appropriate measures submitted;

(c) conformity with the principles referred to in Article
9(2) of the Directive concerning respect for the objec-
tives of
the Directive, absence of distortions of
competition, and extent of the measure.

Thus an exemption may not be used to allow the airport a
further general adaptation period in addition to that
already granted by Article 1 of the Directive. It must
permit the airport to overcome the specific constraints
which it may encounter when the market is opened up.
Any exemption must therefore be examined in the light
of the specific constraints pleaded as evidence of the
impossibility of opening up the market within the time
allowed. Moreover, according to the case-law of the Court
of Justice of the European Communities in its judgments
of 20 April 1978 in Joined Cases 80 and 81/77, Commis-
sionaires r(cid:130)unis v. Receveur des Douanes (1) and of 25
June 1992 in Case C-116/91 British Gas (2), any exemp-
tion must be interpreted strictly and the scope of an
exemption must be determined in the light of the aims of
the measure in question.

It is in the light of these considerations that this exemp-
tion has to be examined.

the Directive,

In accordance with Article 9(4) of
the
Commission has made a detailed analysis of the alleged
space and capacity constraints, has considered whether
the decision taken is appropriate to those constraints, and
forward to overcome
has appraised the measures put
them. It has relied in particular on the studies presented
by Germany, the visits it has made to Frankfurt airport,
and the study it commissioned following the lodging of
the complaint under Article 86 of the Treaty, with a view
to assessing the space and capacity problems which would
result at the airport from the opening-up of the market
for groundhandling services. The conclusions of
this
study, carried out by Cranfield University College of
Aeronautics (cid:190) Air Transport Group, and entitled Ground
handling at Frankfurt Airport, were presented to the
Commission in June 1997. The Commission also took
account of the comments made by Frankfurt airport on
the Cranfield study, which were communicated to it by
Germany on 30 October 1997, and heard that Member

(1)
(2)

[1978] ECR 927.
[1992] ECR I-4071, at point 12.

State on 4 December 1997 and FAG on 29 December
1997 with regard to this evaluation.

2. Space and capacity constraints

The principal point made in the notification from
Germany is that there is not enough space at the airport
to accommodate the extra equipment which admission of
a second handling service or of a self-handling user would
entail.

Introduction

Before evaluating the space and capacity constraints at the
airport, certain general principles need to be recalled.

First, the various studies submitted to substantiate the
decision (NACO, Fraunhofer) or
requested by the
Commission (Cranfield) show that current equipment
levels at
the airport are not excessive and that FAG
endeavours to optimize equipment utilisation by planning
the demand.

Second, it can be accepted that the requirements of a
self-handling user are generally comparable to those of a
supplier of handling services to third parties, although
they sometimes differ depending on the situation at each
airport, and particularly on the fleet of the largest carrier
at the airport. For present purposes, it is therefore possible
to refer to operators in general, without drawing any
distinction between handlers providing services to third
parties and self-handling users (who may, in some cases,
be one and the same company).

It is recognised that admission of one or more operators
requires extra space: equipment requirements are geared
to the volume of traffic at the airport’s peak time. In a
monopoly situation, the peak time at the airport is, there-
fore, the reference point. In the event of competition,
however, the peak time of each operator is the point
which must be taken into account; this does not always
coincide with the peak for the airport in general. As a
result, total equipment requirements at the airport depend
on the sum total of
the peak requirements of each
supplier. Competition therefore increases total require-
ments in terms of equipment, and hence of parking space
for it.

However, another
factor which must be taken into
account is that any opening-up to competition will reduce
the market share of the previous monopoly-holder, thus
reducing that operator’s equipment and, hence, space
requirements. Allowance must be made for such repercus-
sions, even though requirements will not necessarily fall
in proportion to market share, so that it is difficult to
assess the impact of opening up to competition on each
supplier’s market share, which will depend not only on
each supplier’s market share but also on the relevant
customer distribution.

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2.1. Space available at Frankfurt

The studies commissioned by FAG put the total space
available at 148 000 m2, of which FAG itself currently
occupies 146 000 m2. These figures are for the current
situation at Frankfurt, whereby FAG services all flights,
including the few flights still operated by Delta at the
airport in 1997. The current situation is, therefore, that
there are no major space problems at Frankfurt airport.
According to FAG, the arrival of a new supplier would
create a space shortage of 32 000 m2.

The NACO studies indicate that on the assumption that
Delta performed its own handling services and operated
more flights, the forecast for 1997 would have resulted in
a space shortage of 13 725 m2. Allowing for the traffic
growth forecast and planned at the airport, this shortfall
would have risen to 16 300 m2 by 2000. FAG estimates
that in the same scenario admission of a second supplier
would have pushed the space shortage up to 32 200 m2 in
1997 and to over 35 000 m2 in 2000.

The Commission has a number of comments to make on
these studies:

(a) Estimates

Based on evaluation of plans, NACO estimated the
space available at 148 000 m2, but the figures supplied
to the Commission by FAG on 16 May 1997 showed
only 138 235 m2 available on site in 1997. According
to FAG, the parking space for groundhandling equip-
ment has been reduced since 1994, partly to create
new positions to meet the demand for capacity and
partly to build the new fire station.

large extent with own equipment capable of handling
up to 13 flights within a limited time-frame. Conse-
quently, a considerable amount of space was vacated,
estimated at 8 000 m2.

The file accompanying the decision by the German
authorities indicates that at least part of this space has
been used by FAG itself to service Delta’s remaining
flights and other airlines. Consequently, Delta’s with-
drawal has enabled FAG to improve conditions for its
own handling operations, since the airport now has
more space for
self-
handling operations until the start of 1997 show that
it is not impossible to accommodate a second supplier
or a self-handling user.

itself. Nevertheless, Delta’s

(c) Admission of an extra supplier

The NACO studies attempt to demonstrate that it is
impossible to admit a further supplier or a self-
handling user. They also conclude that the airport
needs to ensure total coordination of all ground-
handling activities. However, it must be noted that, for
historic reasons, Federal Express has been self-
handling certain categories of service and, under the
exemption decision, will be able to continue to do so.
SAS, in turn, handled its own flights until 1995. It is
true that these airlines’ operations were or still are on
an extremely small scale and, in the case of Federal
Express, limited to certain parts of the airport reserved
specially for freight and mail and separate from the
passenger terminals. These activities may be regarded
as marginal for the purposes of application of the
Directive. However, this was not the case with Delta’s
operations in Terminal 2, which show that even with
at least one operator other than FAG the airport struc-
tures still worked.

(b) Withdrawal of Delta

(d) Calculations

The NACO figures indicate a space shortage of
32 000 m2 if the market is opened up to competition.
to the Commission even
The notification sent
mentions a shortfall of 35 000 m2. However,
these
figures are based on the assumption of admission of a
new supplier
in addition to Delta’s self-handling
service. Consequently, instead of merely the admis-
sion of a second supplier (making two operators in
all), it assumes the presence of two suppliers (cid:190) or one
supplier and one self-handling user (cid:190) plus FAG itself
(three operators). This no longer reflects the true situa-
tion, since Delta has abandoned its self-handling
activities.

The Cranfield report estimates the space available at
164 000 m2. This was calculated by starting with the
138 000 m2 declared available today by FAG, then
adding the space which should become available from
certain freight areas (51 000 m2) and deducting the
area actually to be occupied by new buildings
(25 000 m2).

2.2. Space requirements

By contrast, Delta’s withdrawal this year on two fronts
(cid:190) abandoning its self-handling services and cutting
its number of flights (cid:190) has vacated space. When
Delta provided its own handling services, it was oper-
ating just 17 flights a day, which were handled to a

A number of comments must be made on the space
requirements as set out in the NACO studies to substan-
tiate the exemption decision, both with regard to the data
submitted and on use of the space available.

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(a) The figures

The NACO study dated 27 October 1995 indicates that if
a second supplier were admitted an extra 20 000 m2
would be needed, assuming a total of three operators,
since these figures are based on the assumption that, in
addition to FAG, Delta was still running its own self-
handling operations. In the current situation, now that
Delta has abandoned self-handling and FAG acknow-
ledges that it occupies 146 000 m2 itself, NACO estimates
that a further 32 000 m2 would be needed (giving a total
of 178 000 m2) instead of the 20 000 m2 when Delta was
operating. The NACO studies also calculated that the
total space which would have been required if Delta had
continued self-handling operations (cid:190) that is, if a second
operator (self-handling user) were active at the airport,
would be just 155 000 m2.

However, the net additional space requirements attribut-
able by NACO to Delta (13 778 m2) should not be
counted together with the net additional space require-
ments attributable to the additional handler, because they
are not due to the presence of the independent handler
but to that of Delta and because in any case Delta has
ceased self-handling and the requirements attributable to
the handling of Delta flights are already included in the
146 000 m2 required by FAG. The net additional space
requirements of an independent handler as compared
with the monopoly conditions should accordingly be
some 18 500 m2 (32 000 minus 13 725). In the present
situation where FAG is the only operator since Delta has
ceased its activities, one would accordingly expect the
total space requirements attributable to be less than
165 000 m2 (146 000 plus 18 500) and not the NACO
figure of 178 000 m2.

Moreover, in the scenario adopted by NACO, Delta was
not only operating more flights than in 1997, but was also
using equipment with capacity to handle more flights
than it was operating at the time. In fact, Delta managed
to park on an area of 8 000 m2 equipment capable of
ensuring the major part of the handling of 8 to 10 % of
flights at the airport.

This fact shows clearly that far less space is needed to
service this segment of the market than is estimated in
the NACO studies. This is even more true in view of the
fact that Delta used a share of the market comparable to
the figure used in the NACO study and that Delta, which
does not operate in the afternoon, needed the space to
park all of its equipment, which would not be the case for
a supplier operating for several clients and would there-
fore be able to spread its services in a more regular way
across the whole day.

airport as Frankfurt. The equipment is parked at night,
when there are no flights to service, and it can therefore
be parked in the positions available, as it is today.

In fact, the need for space in connection with access to
the market depends to a large extent on the distribution
of clients between the suppliers and the spreading of
operations over the whole day.

the various evaluations presented by
On the basis of
NACO and Cranfield and taking into account
the
different hypotheses as to the distribution of clients and
the periods of the day over which handling services can
be spread out, it appears nevertheless that the following
can be estimated:

(i) that the need for space lies between 104 000 m2 and

165 000 m2;

(ii) that the available space can be estimated at between

148 000 m2 and 164 000 m2.

165 000 m2

an available

Even on the most pessimistic assumption used by NACO
of
for
(need for
148 000 m2), the available space would allow for parking
of 90 % of all required equipment. However, in an airport
where peak hours are very limited, as FAG itself agrees, at
least 10 % of the equipment is not parked but remains in
constant circulation. Outside the peak hours this equip-
ment can then be parked on spaces which have remained
vacant.

space

(b) Use of the space available

As was indicated above, Article 9 must be interpreted in a
restrictive manner, taking into account the aim of the
measure. As is shown by its title, the aim of the Directive
is to provide access to the groundhandling market and the
principle of free access is clearly defined in Articles 6 and
7 even though it is true that specific possibilities are
granted to the Member States
to a
minimum of
two operators for certain categories of
service.

to limit access

The Commission is of the opinion that adherence to the
aim of the Directive means that only the constraints
mentioned in Article 9, which by themselves present
obstacles to the implementation of the Directive, can
include
afford a basis
constraints created by the airport itself, as was the case for
the allocation of space left vacant by Delta even after the
adoption of the Directive. The impossibility of opening
up the market must be ascribable to a factor which is
independent of the will of the party relying on it.

for exemption. This cannot

In addition, NACO’s estimate is based on each supplier’s
peak requirements (see above) but simply adds together
all the space required by each supplier in order to park all
its equipment, disregarding the fact that a large propor-
tion of the equipment is in use virtually non-stop and is
not parked for most of the day, least of all in such a busy

For a number of years, new space has been vacant at the
airport. However, the development plans for the airport
show that the space freed has always been, and still is,
allocated to uses other than groundhandling, including
commercial activities not essential to air traffic manage-
ment.

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It is not lack of space as such which makes it impossible
to admit any new operator at Frankfurt but principally the
use which FAG has decided to make of the space avail-
able or which will become available which could create
problems if another operator were admitted.

groundhandling

Until 1997 Delta operated self-handling services without
disrupting
at Frankfurt
airport. The space shortage claimed by FAG with one
self-handling carrier in addition to FAG did not disrupt
the smooth operation of the airport, the quality of service
provided or the general reputation of Frankfurt airport.

operations

The German authorities have failed to demonstrate that it
is impossible to admit any new operator to the airport as a
whole.

2.3. Airport layout problems

Although the space requirements are no reason for main-
taining the monopoly over the airport as a whole, consid-
eration must also be given to whether the infrastructure
configuration permits the opening-up of every part of the
airport and, if so, to what degree. Therefore, at this stage, a
more detailed analysis must be made of the airport instal-
lations, drawing a distinction between the two terminals.

At Terminal 2, it is possible to service 13 gate parking
positions, plus 18 remote positions opposite the terminal
and 11 positions for short-haul services. Terminal 2 is
occupied by a large number of different carriers which do
not generally park at Terminal 1. Its straight axis avoids
equipment traffic problems. According to the Cranfield
study, the baggage sorting halls could accommodate new
operators. A considerable amount of space was vacated
when Delta ceased self-handling, although part of it has
been allocated to FAG’s equipment since then. Terminal
2 has no space or traffic problems precluding any other
operator, as has been demonstrated for many years by
Delta’s self-handling activities at this Terminal. It is by no
means proven that it is impossible to open up these
services and there is no reason to maintain a monopoly in
this part of the airport. According to the Cranfield study,
however, the space available at this Terminal allows no
the same time, whether
more than three handlers at
suppliers of services to third parties or self-handlers.

At Terminal l, by contrast, an increase in the number of
operators would make groundhandling equipment traffic
extremely difficult. The configuration of Terminal 1
already poses problems with aircraft shunting in the
culs-de-sac between Piers A and B, and between Piers B
and C. The presence of several handlers and/or self-
handling users would cause problems. A number of
handlers is likely to occur in the eastern part of the
Terminal where several airlines operate. The western part,

by contrast, has been allocated to Lufthansa and Condor
on an almost exclusive basis. According to the flight plan
simulation submitted by FAG (Fraunhofer 27 June 1997,
last Annex), 94 % of the movements in that area are
attributable to Lufthansa and Condor, while other airlines
account for 124 weekly movements only (approximately
one movement every three days on each stand of this
area). Conversely, Lufthansa or Condor flights outside this
area are very limited, with the exception of position B2
which is almost fully allocated to Lufthansa. This implies
that
in this area predominantly one handler would
operate in any case (be it FAG, an independent handler or
Lufthansa as a self-handler). Accordingly there are no
technical obstacles to Lufthansa’s being handled by a
different handler than the one operating in the eastern
part of Terminal 1.

On 7 January 1998, FAG indicated a change in those
figures, stating that in August 1997 an average of 12,2 %
of the traffic in the western part of Terminal 1 accounted
for 18 airlines other than Lufthansa. The Commission is
not convinced that, even on the assumption of those
figures being true and representative, such an increase
would necessarily result in severe congestion problems.
Moreover, it should be noted that FAG is responsible for
the allocation of airlines to their different stands and,
where the congestion problems increase, can take meas-
ures to reduce the problem. In this context, it should be
recalled that only the constraints recited in Article 9 of
the Directive can serve as a basis for an exemption. The
impossibility of opening up the market must be due to a
factor which is independent from the will of the party
bringing it up.

However, the configuration of a terminal cannot in itself
be an adequate reason for maintaining a monopoly. By
limiting exemptions granted by Member States under
Article 9(1)(b) to a maximum of two years, which may be
extended once only, and by stipulating that users must
have an effective choice whatever part of the airport is
allocated to them, the Directive does not allow Member
States to deprive users of this right by way of constraints if
there are no plans to change them throughout the period
covered by the exemption. All exemptions must be
accompanied by measures to overcome the constraints
invoked as reasons for granting them.

The exemption submitted made no provision for any
reconfiguration of Terminal 1 to overcome the constraints
invoked. Consequently, the configuration by itself cannot
justify extension of the monopoly beyond the date set in
Article 1 of the Directive for opening up the market at
airports in the same category as Frankfurt, namely beyond
1 January 1999.

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2.4. Ongoing work

The exemption is based on the fact that construction
work is in progress on Pier A in Terminal 1 to create new
aircraft gates and to reduce the airport’s dependence on
remote positions on the western part of the tarmac. In
addition, the whole of Terminal 1 is being converted to
comply with the Schengen standards, particularly by
doubling the floors in Terminal 1. Terminal 2 already
complies with these standards. This work should be
completed by the end of 2000. This extension should
increase the number of gate parking positions and reduce
the distance to certain remote positions, thereby reducing
boarding and disembarkation times and traffic in the area.

While this work is in progress the exacerbation of prob-
lems caused by an already difficult ground-traffic situation
in the northern part of Pier A and in both culs-de-sac will
preclude the parallel presence of any additional operator
at Terminal 1, up to Gate C 15 of Pier C, according to the
1994 plan dated 16 May 1994 submitted by the German
authorities. This limitation to a single operator must
therefore, for the same reason, cover not only operations
on the apron between piers but also operations involving
the transport of passengers, baggage and crew as well as
freight and mail between aircraft on remote positions and
Terminal 1. This work, making it impossible to open up
the market, combined with the exceptional but temporary
nature of its consequences could be reasons for granting
an exemption.

2.5. Effects on capacity

Germany claims that opening up the groundhandling
market would make it necessary to convert the remote
positions into parking spaces for groundhandling equip-
ment and thereby reduce the total capacity of the airport.

This argument is directly linked to the space-shortage
argument outlined above, since it is based on the assump-
tion that conversion of aircraft positions is the only way
of vacating enough space for a second operator. As is
shown above, no evidence has yet been produced of any
such constraints.

The decision states that the space occupied by the airport
has increased by a factor of 2,4 over the last 40 years,
compared with a 130-fold increase in the number of
passengers over the same period, and is based on the fact
that the demand for capacity far exceeds the current
supply.

runways are too close together to allow independent
control of each runway, forcing the airport to use only
one runway at a time, which takes up time and capacity.
These constraints also entail greater use of servicing
vehicles.

According to the file submitted by the German author-
ities to substantiate their decision, there is already a short-
fall of 11 aircraft parking positions and this undercapacity
leaves no alternative to making full use of every position
and using all areas vacated to create new positions, at the
same time precluding allocation of any further parking
areas to groundhandling vehicles.

According to the file, the development plan to increase
the number of movements at the airport will not be
feasible without a proper increase in the number of
aircraft parking positions. Accordingly, admission of any
additional supplier would have adverse consequences on
the space which it
the capacity expected, because of
would take up.

The capacity shortages invoked by Germany and the
consequences of opening up the market cannot justify
maintaining a full monopoly.

First, no airport can expand its surface area in proportion
to traffic growth. Its capacity therefore varies, depending
on the decisions taken on extensions. At the same time,
most major European airports have to cope with demand
exceeding the capacity available, and Frankfurt
is no
exception. The fact that the airport is currently operating
a perfectly acceptable quality of service with 38,8 million
passengers in 1996 (compared with 300 000 in 1950)
shows that until now it has been possible to overcome the
capacity problems. The figures submitted do not,
in
themselves, directly indicate any insurmountable capacity
problems. The planned closure of seven positions will not
affect the current overall capacity of the airport. In any
case, these closures were designed to allow the construc-
tion of new infrastructure to proceed. The nine gates
created by the work exceed, the seven positions lost, and
the total number of positions (cid:190) 156, including those
added by the extension of Pier A and the link between
the two terminals (Pier C) (cid:190) suggests that, compared with
other airports, it will be possible to achieve the demand
envisaged by the airport, totalling some 80 movements
per hour in 2000. Consequently, the number of positions
is not the decisive factor as regards capacity at Frankfurt.

The reason for the capacity constraints lies in the layout
of the installations, and in particular their lengthwise
arrangement, as a result of which almost two-thirds of the
positions are remote from the terminal. Moreover, the two

The German authorities’ argument is based on the reper-
cussions which admission of a second supplier will have
on the planned capacity growth. The German authorities
clearly state that the airport’s priority for the next few

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years is to increase its capacity substantially. It should be
pointed out that equipment and staff levels at any given
time depend, above all, on the number of aircraft
requiring handling services. This has nothing to do with
the number of suppliers. Secondly, the plan to increase its
capacity is a decision on the part of the airport to meet
some of the demand from carriers.

Although the decision to increase capacity is one which
may not be limited exclusively to the commercial interest
of the airport alone, but is of wider economic importance,
to be applied by
nonetheless the Directive is meant
airports, exemptions being granted only where it
is
impossible to open up the market. The temporary nature
of the exemption would, on its own, be sufficient reason
to open up the market,
if any were needed. Were it
otherwise, then airports would acquire the right to decide
for themselves, as long as they see fit, which objectives
that they consider to take priority over application of the
legislation. Moreover, the German authorities’ argument
could be supported by all airports, though possibly to
differing degrees, since any extra space made available to
groundhandling operations must be taken away from the
space which could be allocated for other purposes. The
problem addressed by the Directive is different: it is to
determine whether space or capacity problems ‘exist' for
the purposes of Article 9(4) of the Directive which make
it impossible to open up the market, and not whether
hopes or decisions to develop capacity for economic
reasons may be fulfilled. The German authorities have
provided no proof that it is impossible.

As was mentioned earlier, the total number of positions
planned (156) should meet the demand generated by the
increase in runway capacity.

Finally, Germany bases the exemption decision on the
effects of opening up the market on management of the
system and baggage sorting operations and on the quality
of service at Frankfurt, notably the minimum connecting
time. Article 9 of the Directive allows exemptions to be
granted on the basis of space and capacity constraints
only. The Commission cannot, therefore, accept this argu-
ment.

3. Measures planned

Under Article 9(2) of the Directive, any decision to grant
an exemption must be accompanied by a plan of appro-
priate measures to overcome the alleged constraints.

Germany explains its exemption decision by reference to
a space and congestion problem at the airport. The space
problem has not been demonstrated and the congestion
is, in the view of the Commission, confined to Terminal
1. However, no plan to totally overcome this congestion
problem accompanied the German authorities’ decision.

The final reason given for the exemption is exacerbation
of the congestion at Terminal 1.

In particular, construction work is in progress to convert
Terminal 1 to Schengen standards and to extend Pier A in
Terminal l. This extension will add 12 new gate parking
positions and, consequently, reduce the distance to some
of the remote positions. On completion of the work on
Pier A, at the end of 2000, the vacated remote positions
could be allocated as parking spaces for groundhandling
equipment.

While the work is in progress, the traffic problems created
by the conversion to Schengen standards and extension of
Pier A will be too great to allow more than one operator
in Terminal 1, particularly in the two culs-de-sac between
the piers. When this work is completed, certain difficul-
ties will persist but the plan submitted by the German
authorities includes a commitment on the part of the
airport to open up the market at this point and to release
parking spaces equivalent to seven aircraft parking posi-
tions between the runway and Terminal l for ground-
handling equipment. The commitment relates to or-
ganizing the competitive procedure for selecting the
suppliers of the services by the beginning of 2000.

FAG’s commitment to allocate the positions vacated as
parking spaces for groundhandling equipment, and to do
so no later than that moment and in all circumstances, in
order to open up the market, can be considered a measure
to overcome the constraints, in accordance with Article
9(2) of the Directive.

4. Compliance with the criteria laid down in

Article 9(2) of the Directive

The German decision fails to state explicitly whether it
complies with the principles laid down in Article 9(2) of
the Directive as to compliance with the aims of the
Directive, non-distortion of competition and proportion-
ality of
taken relative to the existing
constraints, nor is any evidence thereof adduced.

the measures

Contrary to the conclusions reached in the study by Cran-
field University (cid:190) as notified to Frankfurt airport and
drawn to the attention of
the German authorities (cid:190)
stating that different approaches were needed, tailored to
the exemption
the configuration at each terminal,
decision draws no distinction between the terminals and
gives no explanation as to why it is impossible to open up
the market at either of them. In the light of the foregoing
considerations concerning the space available at Terminal
2 and the situation regarding Piers A and B in Terminal 1
which are used largely by companies in one and the same
group,
the exemption
extends further than necessary and fails to comply with

the Commission considers that

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Official Journal of the European Communities

18. 6. 98

principle (iii) set out
Article 9(2) of the Directive.

in the second subparagraph of

HAS ADOPTED THIS DECISION:

IV. CONCLUSIONS

For the reasons stated above, the Commission is of the
opinion that the arguments, studies and plans submitted
by the German authorities do not adequately show that
constraints are so great as to justify the derogation
requested.

After hearing the German authorities and consulting
them on the draft decision, the Commission considers
that in order to be approved the decision taken by the
German authorities and notified on 15 October 1997
must be amended, in accordance with Article 9(5) of the
Directive, as follows:

In relation to Terminal 1:

the
The exemption granted from the provisions of
Directive for third-party and self-handling shall apply in
relation to the eastern part of the terminal (eastern part of
Pier B from Gate B 2 to B 42 and Pier C up to Gate C 15
in the 1994 plan submitted by Germany) as well as for
operations involving the transport of passengers, baggage
and crew as and also of freight and mail between aircraft
on remote positions and Terminal 1,
the
exacerbation of congestion in Terminal 1 during the
construction work. For the other parts of the terminal, on
the other hand, on the grounds set out above, the exemp-
tion from the provisions of the Directive for third-party
handling shall not apply and the exemption from the
self-handling provisions shall be restricted to a single
airport user;

in view of

In relation to Terminal 2:

The exemption granted in respect of third-party handling
shall be withdrawn. In order to guarantee to all airlines a
choice between at least two suppliers of groundhandling
services, as provided for by the Directive, the market
needs to be opened up to a second supplier, in addition to
FAG. However, since in practice the space available at
this Terminal allows no more than three operators at the
same time (whether they be suppliers of services for third
parties or self-handling users), it follows that, in deroga-
tion from the provisions of the Directive, the right to
self-handle shall be restricted to a single user,

Article 1

The exemption decisions granted to Flughafen Frankfurt/
Main AG, as notified to the Commission on 10 April and
20 October 1997, are hereby approved, provided that
Germany makes the following amendments thereto:

(a)

the exemptions under
in relation to Terminal 1,
Article 9(1)(b) and (d) of Directive 96/67/EC shall be
granted only in respect of the eastern part of Pier B
running from Gate B 2 to Gate B 42, and Pier C up to
Gate C 15, as well as to the transport of passengers,
baggage, crew, cargo and mail between the aircraft and
the Terminal; as regards Pier A and the western part
of Pier B from Gate B 10 to Gate B 23, no exemption
under Article 9(1)(b) of the Directive shall be granted,
and the exemption under Article 9(1)(d) of
the
Directive shall be granted in such a way as to allow
one airport user the right to self-handle;

(b) in relation to Terminal 2, no exemption under Article
9(1)(b) of
the Directive shall be granted and the
exemption under Article 9(1)(d) of the Directive shall
be granted in such a way as to allow one airport user
the right to self-handle.

Article 2

Germany shall notify the
as
amended pursuant to Article 1, to the Commission before
they enter into force.

exemption decisions,

Article 3

This Decision is addressed to the Federal Republic of
Germany.

Done at Brussels, 14 January 1998.

For the Commission

Neil KINNOCK

Member of the Commission