98/388/EC: Commission Decision of 14 January 1998 on the application of Article 9 of Council Directive 96/67/EC to Düsseldorf Airport (Flughafen Düsseldorf GmbH) (notified under document number C(1998) 71) (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

L 173/45

COMMISSION DECISION

of 14 January 1998

on the application of Article 9 of Council Directive 96/67/EC to D(cid:129)sseldorf
Airport (Flughafen D(cid:129)sseldorf GmbH)

(notified under document number C(1998) 71)

(Only the German text is authentic)

(Text with EEA relevance)

(98/388/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 ground handling market at
Community airports (1), and in particular Article 9(5)
thereof,

After consulting the Advisory Committee established
thereunder,

Whereas:

(1)

I. SCOPE OF THE EXEMPTION NOTIFIED BY

GERMANY

A. The notification presented by the German

authorities

of

received by the Commission on 17
By letter
October 1997, a summary of which was published
in the Official
the European
Journal
Communities (2), the Government of the Federal
Republic of Germany informed the Commission,
in accordance with Article 9 of Directive 96/67/EC
(‘the Directive'), of its intention to grant D(cid:129)sseldorf
airport (Flughafen D(cid:129)sseldorf GmbH) an exemp-
tion:

(cid:190) to ban self-handling for

the categories of
services referred to in points 5.1, 5.2, 5.4 (except
for transport of crew), 5.5 and 5.6 in the Annex
to the Directive and self-handling as regards the
physical handling of freight and mail, whether
transferred,
or
incoming,
between the air terminal and the aircraft. This
exemption, based on Article 9(1)(d) of
the
Directive, is granted for three years, starting on
1 January 1998 and ending on 31 December
2000,

outgoing

being

(cid:190) to limit to two the users self-handling for the
categories of services referred to in points 6.1,
6.2 and 6.3 in the Annex to the Directive. This
the
exemption, based on Article 9(1)(c) of

(1) OJ L 272, 25. 10. 1996, p. 36.
(2) OJ C 335, 6. 11. 1997, p. 6.

Directive, is granted for three years, starting on
1 January 1998 and ending on 31 December
2000,

(cid:190) to reserve to D(cid:129)sseldorf airport

(Flughafen
D(cid:129)sseldorf GmbH) the monopoly for the provi-
sion to third parties of the categories of services
referred to in points 5.1, 5.2, 5.4 (except for
transport of crew), 5.5 and 5.6 in the Annex to
the Directive and for freight and mail handling
as regards the physical handling of freight and
mail, whether incoming, outgoing or in transit,
between the air terminal and the aircraft. This
the
exemption, based on Article 9(1)(b) of
Directive, is granted for two years, starting on 1
January 1999 and ending on 31 December
2000,

(cid:190) to limit

to two suppliers

the provision of
handling services for third parties, for the cat-
egories set out in points 6.1, 6.2 and 6.3 of the
Annex to the Directive. The exemption, on the
is
basis of Article 9(1)(a) of
granted for three years, starting on 1 January
1998 and ending on 31 December 2000.

the Directive,

B. Basis of the exemption

(2)

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

requires

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Official Journal of the European Communities

18. 6. 98

(3)

(4)

(5)

(6)

(7)

The Directive has also taken account of the fact
that, in certain very special cases, severe space and
capacity problems 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 therefore be only
exceptional in nature and are not intended to auto-
matically give airports an additional
transitional
period to that already provided for in Article 1 of
the Directive.

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 exemp-
tion described in paragraph 1, in accordance with
Paragraph 3 of
the German Verordnung (cid:129)ber
Bodenabfertigungsdienste auf Flugpl(cid:132)tzen und
zur (cid:142)nderung weiterer luftrechtlicher Vorschriften
transposing Directive 96/67/EC into national law.

C. Current situation at D(cid:129)sseldorf airport

At the time of the exemption decision, the market
had been opened up to competition in passenger
handling activities (point 2 of the Annex), flight
operations
and crew administration (point 9),
ground transport (point 10), catering services (point
11), aircraft maintenance (point 8), fuel and oil
handling (point 7) and certain ancillary operations
relating to freight handling (point 4.1).

Under
the German regulation transposing the
Directive (see paragraph 4), access has been opened
up from 1 January 1998 for self-handling and will
be opened up on 1 January 1999 for the provision
for third parties on ground administration (point 2),
and communication
mail
between the aircraft and the supplier (point 5.3).

(point 4.2)

services

The exemption granted by the German authorities
allows for some opening-up of access to cleaning
and aircraft services; however, this is limited to two
suppliers and two self-handling users.

However, the airport (Flughafen D(cid:129)sseldorf GmbH)
banned self-handling at the time of the decision
and, with the exception of
the loading and
unloading of food and beverages (points 5.1, 5.2,
5.4, 5.5, 5.6), access to which has been opened up,
will continue to provide ‘airside' services under the
exemption, and reserves the option of providing
them alone.

II. CONSTRAINTS

REFERRED

TO

BY

GERMANY

A. Introduction

(8)

The reasons given by Germany for the exemption
decision relate principally to:

(cid:190) the full use already being made of the space

available at the airport,

(cid:190) the numerous space and capacity problems
which the airport has been suffering since the
fire at the terminal on 11 April 1996,

(cid:190) the increase in demand for space that would
result from the opening-up of the market to the
degree envisaged by the Directive.

(9)

The exemption decision is based on the arguments
and studies presented by Flughafen D(cid:129)sseldorf:

(cid:190) grounds for an exemption under Article 9 of
Council Directive 96/67/EC on access to the
ground handling market at Community airports
(cid:190) Flughafen D(cid:129)sseldorf (cid:190) September 1997;

(cid:190) study by the Netherlands Airport Consultants
liberalising
service

BV (NACO): Consequences
ground handling to permit
providers (cid:190) 3 July 1997,

of
several

(cid:190) Development Plan accompanying the applica-
tion for exemption (cid:190) D(cid:129)sseldorf, September
1997.

B. The structural

space problems at
airport

the

is far
In 1994,

(10) According to the German authorities, the volume
of traffic per hectare of available space at D(cid:129)ssel-
in excess of other German
dorf airport
airports.
the number of commercial
aircraft movements has been limited to 91 000
during the six busiest months of the year. Since
December 1997, 105 000 movements have been
allowed under the rules of a noise quota system.
During the second and third phase the number of
movements will increase to 110 000 and 120 000
respectively. With an area of 613 hectares,
the
airport therefore records almost 300 movements or
24 700 passengers per hectare whereas for airports
of similar size, such as Hamburg or Berlin-Tegel,
the figures are only 14 500 and 17 500 passengers
respectively.

(11)

The German authorities also refer
to capacity
constraints. A limit has been imposed on the
number of movements at D(cid:129)sseldorf airport and
the former maximum of 91 000 commercial move-
ments in the six busiest months of the year was to
be reached in 1995. Since then the airport has been

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at saturation point. The maintenance of such a
level in spite of the 1996 fire only aggravates the
difficulties. After
the airport very
the disaster,
quickly returned to its 1995 traffic levels. The
system of noise quotas which will allow the
number of annual movements to be increased from
105 000 over six months to 120 000 has started to
operate in December 1997. This increase, which
can easily be absorbed in terms of runway capacity,
will allow more of the heavy demand from airlines
to be met.

C. The consequences of the fire

(12) According to Germany, the situation deteriorated
significantly as a result of the fire on 11 April 1996.
The fire destroyed the central building and made
all three Piers A, B and C inoperative. Pier C,
including a part at the central building, was reop-
ened in November 1996. The reconstruction works
in the other areas are underway in line with estab-
lished plans.

During the renovation and reconstruction work:

(cid:190) several contact points can now be used only as
remote positions. Moreover, the arrival of all
passengers is concentrated on Pier C, which
alone has a baggage reclaim system. This situ-
ation means that many more vehicles and gang-
ways are needed for passengers, as well as
parking areas for those vehicles and appliances,

(cid:190) temporary buildings have had to be assembled.
Temporary offices as well as two modules, east
and west (modules D and F), have had to be
constructed to handle the embarkation of
passengers on a temporary basis. These modules
are, however, completely congested at certain
peak periods. They also reduce the space avail-
able for other purposes,

(cid:190) three positions (50, 51 and 60) have had to be
closed for the reconstruction of Pier B and
storage of material,

(cid:190) the storing of building materials makes the

situation even worse,

(cid:190) the increase in traffic on the paved aprons
makes circulation very difficult along the whole
length of the terminal, particularly because of
the enclosure around Pier B which, while work
is carried out on that Pier, will oblige the
airport to divert traffic and will deprive it of a
major junction at that point. According to the
airport, the loss of space can be estimated at
around 7 500 m2.

(13) According to the airport authorities, the scale of the
work will mean that the installations will resume
operations only very gradually.

Pier C has been in operation again since November
1996. This Pier is of major importance since it is
here that
the baggage conveyors for passenger
arrivals are located. In order to increase capacity, an
extension to the south of the Pier will make it
three more conveyors. This
possible to install
extension has been constructed at
the cost of
tarmac space, including certain equipment storage
areas.

Pier A should be open in mid-1998. Slightly
extended, it will then be able to hold four more
gates. Until then, passengers arriving at gates at this
Pier will have to be transported to Pier C in order
to retrieve their baggage.

Pier B is likely to remain completely closed until
2001. Major modifications are needed, including an
enlargement over
its entire length, with new
arrangements for separating Schengen and non-
Schengen passengers and additional offices and
rooms.

Two modules, D and E, to the east and west cope
with the demand provisionally. According to the
airport, however, these have little in the way of
aprons and this makes ground transport times fairly
long.

Under the overall reconstruction plan, the infra-
structures will not be completely operative again
until 2002. However, the space needed for opening
up the ground handling market should, under the
plan put forward, be available from the beginning
of 2001.

D. The consequences of opening up the

market

(14)

The NACO study shows that there is currently a
shortage of space of more than 10 000 m2 because
of the effects of the fire. In its analysis, NACO
highlights a direct link between the arrival of new
operators (cid:190) service suppliers or users engaged in
self handling (cid:190) and the need for space. NACO’s
conclusions are based on the fact that the number
of vehicles and volume of equipment depends on
the requirements of each operator, and the need for
space to store such equipment increases propor-
tionately to the number of operators.

(15)

The current shortage is now offset by renting
hangers and using certain processing areas for
parking equipment. With the arrival of a second
operator, such a compensatory measure would no
longer be possible, since the very short-term varia-

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Official Journal of the European Communities

18. 6. 98

tion in the allocation of positions and consequently
of the suppliers of services to the airlines will mean
there can be no parking on these areas.

(16) According to the airport, the opening-up of the
market would lead to the closure of extra positions,
thus reducing the capacity of the airport when it is
already experiencing difficulties in this area.

(17)

In conclusion, according to the NACO study, the
current 25,4 % shortage of space would rise to
30 % if a service supplier had 15 % of market
share, 38 % if it had 40 % of the market and 37 %
in the event of self-handling by the main carrier.

E. Observations of the interested parties

(18)

to Article 9(3) of

Following the publication by the Commission of a
the notification from the German
summary of
authorities and pursuant
the
Directive, a number of airlines and associations of
airlines have expressed doubts as to whether such
an exemption is justified. However, their reasoning
is based on a mere claim that there is sufficient
space at the airport to receive new operators and
that the management is unwilling to open up the
market as quickly as possible. Although most of
these airlines recognise the exceptional situation at
this airport because of the fire, some of them refer
to the fact that faced with the consequences of the
fire the airport has shown a great capacity for
adapting and could with an additional effort adapt
very quickly to the conditions for opening up the
market.

III. EVALUATION OF THE EXEMPTION IN THE

LIGHT OF DIRECTIVE 96/67/EC

A. Background

space or

(19) An exemption can be granted only on the basis of
constraints. These
capacity
specific
constraints must be sufficiently important to make
it impossible to open up the market to the degree
provided for in the Directive. Moreover, Article 9(2)
of
the
the Directive expressly lays down that
exemption granted must not unduly prejudice the
aims of the Directive, give rise to distortions of
competition or extend further
than necessary.
Finally, as the Court has already indicated in a

v.

Receveur

number of cases, and in particular in its judgments
of 20 April 1978 in Joined Cases 80-81/77,
Commissionnaires
des
r(cid:130)unis
Douanes (1) and of 25 June 1992 in Case C 116/91,
British Gas (2), an exemption should not be inter-
preted in such a way as to extend its effects beyond
what is necessary to achieve the intended protec-
tion of interests. The Commission must therefore
make a strict examination of the exemption. On
the basis of Article 9(1)(a) and (c), the Member State
in question may therefore limit to a minimum of
two the number of suppliers or self handling users
for those categories of services to which access is
completely free. It is on this basis that the exemp-
tion limits to two the number of suppliers and
users authorised to carry out aircraft cleaning and
service operations.

(20) However, by virtue of Article 9(1)(b) the Member
State may also reserve the right to provide the
services listed in Article 6(2) to a single supplier
and/or, by virtue of Article 9(1)(d), ban self-
handling or restrict
to a single user for the
services referred to in Article 7(2). It is on the basis
of these provisions that the exemption seeks to ban
self-handling and to reserve to the airport
the
provision of some of the ramp handling services.

it

(21) However, Article 9(2) lays down that an exemption

must:

(cid:190) specify the category or categories of ground-
handling services for which the exemption is
granted and the specific constraints of available
space or capacity which justify it,

(cid:190) be accompanied by a plan of appropriate meas-

ures to overcome the constraints,

(cid:190) not extend further than necessary, nor give rise
to distortions of competition or unduly preju-
dice the aims of the Directive.

(22) Under Article 9(6), the exemptions granted under
Article 9(1)(a), (c) and (d) may not exceed a duration
of three years, subject to a possible extension, while
those granted under Article 9(1)(b) may not exceed
two years.

(23)

(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, oppose it or
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.

(24)

The Commission must therefore verify whether it
is impossible to open up the market to the degree
provided for in the Directive, and must cover the
following three points:

(1)
(2)

[1978] ECR 927, 945.
[1992] ECR I-4071, at point 12.

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(cid:190) the existence and extent of

the space and
capacity constraints alleged by the German
authorities,

that

the Commission considers

(cid:190) the plan of appropriate solutions, which has to
be acceptable from the point of view both of
the measures to be taken by the airport and the
timetable for their implementation. On this
point,
the
airport or Member State must commit itself
even more rigorously to appropriate measures if
the exemption limits access to the market. In
the case of
the exemption for D(cid:129)sseldorf
airport, this applies to the part which permits
the maintenance of a complete monopoly for
certain ramp-handling operations for which
airport users have neither a choice between
several
self-
handling,

the option of

suppliers nor

(cid:190) conformity with the criteria referred to in

Article 9(2) of the Directive.

In accordance with Article 9(4) of the Directive, the
Commission has made a detailed analysis of the
alleged space and capacity constraints, considering
whether the decision taken is appropriate to those
constraints and examined the measures to over-
come them.
it has
received technical assistance from Alan Stratford
and Associates.

In carrying out

task,

this

B. Space and capacity constraints

(a) Structural space problems at the airport

During quieter periods, particularly at night when
equipment is used less, the free positions at the
airport may in principle be used as temporary
parking areas for equipment. However, it is true
in the specific case of D(cid:129)sseldorf, many
that
aircraft are parked overnight, thereby occupying all
the positions. On the other hand,
it should be
remembered that the opening-up of the market
will reduce the market share of the operator that
has hitherto enjoyed a monopoly, thus reducing its
equipment requirements and hence its need for
space to park that equipment.

(26) D(cid:129)sseldorf airport compares its situation with that
of the main German airports. It is true that for an
airport of this size it has a relatively high number
of movements and passengers. However, a compar-
ison made by taking account of
the total area
belonging to the airport and not the usable area,
which excludes among other
things protected
woodland, is not conclusive. Similarly, a statutory
restriction on the number of movements has no
direct effect on the area available for ground-
handling operations.

(27) Moreover, all the data indicating space problems
relate to the period after the fire. They do not
therefore point to any structural shortage of space
beyond that attributable to the effects of the fire.

It is therefore necessary to limit the examination
strictly to the current situation, in other words, to
the temporary difficulties arising from the fire.

(25)

is generally recognised that

It
the presence of
several operators requires more equipment than in
the case of a monopoly and hence more space to
park that equipment.

(28)

Whereas in a monopoly situation the need for
equipment is geared to the volume of traffic at the
airport’s peak time, it is necessary in the case of
several operators to take account of the peak time
of each of the parties involved, which do not always
coincide with that of
the airport. Competition
therefore entails greater requirements in terms of
equipment and hence in terms of space to park
such equipment. It could also, in certain circum-
stances, lead to problems of vehicle traffic on these
parking areas.

that

space requirement

However, to assert, as do D(cid:129)sseldorf airport and the
NACO study,
is
this
proportional to the equipment requirement is to
overlook the fact
there is always a period
during the day where the peak time of the various
service suppliers coincides with the peak time of
the airport (cid:190) particularly at a congested airport,
and that during that period there is less need for
parking space because the equipment is in service.

that

(b) Consequences of the fire

to construct new
The fire forced the airport
modules for passenger departure but also to make
major changes to the operation of the structures
and passenger
the positions,
routing. Most of
hitherto of easy access, can now be used only as
remote points and passengers have to be taken to
and from them by bus. Sixteen buses have had to
be added to the existing fleet of 35, and 12 new
stairways for aircraft were needed for passenger
handling on the apron as well as additional equip-
ment for the transportation of baggage. This signi-
ficant increase in the number of vehicles, coupled
with a lack of sufficient parking space for them,
makes traffic difficult on the tarmac. Moreover, Pier
C in which the baggage arrival system is located at
the requirements of
present has
incoming passengers. Passenger
is
handled by means of two temporary modules at the
east and west. During peak periods, these modules
are congested and the configuration of the prem-
ises, including the embarkation gates, makes bus
movements difficult. Traffic on the tarmac, which
is already dense because of the large number of

to meet all

departure

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18. 6. 98

remote points, and the fact that Pier C acts as the
arrival hall for all passengers at the airport, will be
even more difficult during the reconstruction of
Pier B. During the reconstruction, between 1998
and 2001, the necessary isolation of this Pier will
entail closure of the passage beneath the infrastruc-
ture and force all vehicles to go completely around
the Pier. Finally, it should be remembered that this
Pier alone possesses almost a third of the walkways
connecting to the aircraft and that before the fire it
handled almost half of all passengers.

the parking areas
During that period, part of
around Pier B will be occupied by building ma-
terials, thus reducing the space available at this
location where
are
a number of
currently sited.

containers

(31)

The overnight parking of numerous aircraft at
remote points opposite the freight terminal and the
need to use the de-icing area during the winter
period make it difficult to park equipment in those
areas.

(29) However,

the Commission noted that certain
temporary constructions around Piers C and A,
intended among other things for employees, could
have been installed in less congested areas of the
airport, thus freeing up some of the area around the
terminal.

Moreover, traffic could be improved by reducing
the number of vehicles on the tarmac. In addition,
some of the parking areas for the cars used by
airport staff around module D to the west could be
switched to parking areas for equipment with
airside access. It should, however, be conceded that
these changes would only partly solve the problem
of parking certain vehicles leaving untouched the
crucial problem of congestion around aircraft and
gates in terminals D and E for departures, and C
where arrivals are concentrated.

(30)

The Commission admits, then, that airside parking
and traffic were made difficult by the effects of the
fire in April 1996. The isolation of Pier B from the
beginning of 1998 for reconstruction and extension
work will only aggravate the problems at
the
central point of the airport for the duration of the
major
should be
pointed out that as work progresses and when the
major structural work has been finished and only
the interior work remains, towards the end of 1999,
a sizeable area could be freed around Pier B and
thus serve for parking groundhandling equipment.

structural work. However,

it

is whether these conditions
The question, then,
make it impossible to open up the market to the
degree required by the Directive.

(c) Opening-up of the market

The airport refers to the prospect of an increase in
air traffic at D(cid:129)sseldorf. While it is true that such
an increase in traffic may be expected, it will result
from the airport’s inclination and ability to meet
demand. However, it should be pointed out first
that flight quotas have been statutorily imposed on
D(cid:129)sseldorf (cid:190) although the rules are due to be
relaxed soon (cid:190) and particularly that a policy
decision by the authorities, such as a decision to
increase capacity, cannot be presented as taking
precedence over the application of national or
Community regulations. This intention on the part
of those drawing up the Directive is reflected in the
temporary nature of the exemption and in the fact
that no monopoly can be extended beyond two
periods of a maximum of two years. It is for the
Commission to determine whether
space or
capacity problems, and not hopes or decisions to
develop capacity, make it impossible to open up
the market to the degree provided for in the Dir-
ective.

(32)

The current shortage of space to park equipment,
estimated by NACO at more than 10 000 m2, is
compensated for at present by renting space in the
hangars of certain airlines on the one hand, and by
the space freed up by the closure of three positions
on the other. It should be conceded that not only
will the space needed to park equipment increase
with the arrival of one or more new operators, but
also that some of the possibilities of offsetting this
will disappear from the beginning of 1998 and
throughout the period of reconstruction of Pier B.
This Pier will be totally isolated and part of the
space now used as compensation will also have to
be allocated to the extension of the Pier and the
materials needed for that extension. The airport
will then have to face up to both reduced space and
increased demand.

(33)

The opening-up of the market will result in an
increased need for equipment which may be eval-
uated having regard to both the peak periods of the
airport (cid:190) since at that period all users are relatively
busy (cid:190) and the peak time of each user where this
does not coincide with that of the airport. The
Commission takes the view that there is no direct

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Official Journal of the European Communities

L 173/51

the equipment

relationship between an increase in the number of
users and that in equipment requirements. More-
over,
requirement at any given
moment depends above all on the number of
aircraft to be handled at that moment. However, it
may be stated that the opening-up of the market
will lead in any event to an increase in the volume
of ramp-handling equipment.

(34)

The exemption granted by the German authorities
seeks to limit the number of ramp operators.

(36)

It concerns, first, aircraft cleaning and servicing, for
which the number of suppliers and self-handling
users would be limited to two. Access for two self-
handling users and two suppliers is, however, guar-
anteed by the decision by Germany and a
minimum choice is thus given to users, even
though it cannot be enlarged during the conversion
work. With the congestion at the airport it is not
possible to open up fully the cleaning and aircraft
services without increasing the difficulties inherent
in the extra traffic and parking on the tarmac.

Moreover, the decision seeks to ban the entry of a
user or supplier on the ramp handling market. The
aircraft marshalling, moving,
and
unloading operations and the transport of passen-
gers and baggage airside require a great deal of
heavy equipment for which suitable manoeuvring
and parking areas are needed.

loading

(35)

The scenarios put forward in connection with the
arrival of a new operator must always be treated
with caution. The NACO study takes a number of
hypotheses for the development of the market. It
appears from studies carried out both in prepara-
tion for the Directive and in the case of other
exemptions that the contention that the new arrival
could achieve a 40 % market share in the first few
years is exaggerated. A market share of 15 % is
much more realistic. In this case, and assuming for
the time being that the number of movements is
limited to 90 000 per year, a 15 % market share
would make it possible to handle on average 37
movements per day, which corresponds
to 18
flights per day. However, the viability of such a
situation is completely dependent on the type of
aircraft to be handled and the relevant timetables
for such handling. The supply of services for small
aircraft on that scale is not likely to be profitable. It
would readily be profitable on large aircraft, but in
this case much more equipment would also be
needed. Similarly, handling two aircraft of the same
type at the same time would compel the supplier to
duplicate its equipment. For these reasons,
the
hypotheses have to be taken as mere examples; but

it is difficult to use them for a basis for evaluating
the exact requirements of each of these suppliers.

On the assumption of self-handling by LTU (cid:190) a
company based in D(cid:129)sseldorf (cid:190) and given that the
company owns large jets and that the flight sched-
ules show several flights of this type at short inter-
vals, LTU would have to increase its equipment to
meet its needs.

In general terms, it may be supposed that the intro-
duction of a new operator would entail increased
space requirements, even in the best-case scenario,
of around 3 500 m2. This would not be practicable,
given the existing shortage of more than 10 000 m2
at
the airport and the additional complications
resulting from the closure of Pier B and the need to
arriving or
transport
departing, by bus.

all passengers, whether

C. The restructuring plan

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

The ‘DUS 2000 Plus' project envisages the recon-
struction and development of D(cid:129)sseldorf airport for
the years to come. This project, which is already
under way, should allow the airport to meet both
the needs of the airlines in terms of capacity (cid:190) in
so far as the new regulations allow any increase in
that capacity (cid:190) and the requirements of
the
Directive as to the opening-up of the market. The
plan provided for in Article 9(2) of the Directive
and aimed at overcoming the constraints is incor-
porated in the DUS 2000 Plus project.

the work on the project

is
The first phase of
of
directly
increasing the space available for groundhandling
services.

concerned with the possibilities

(38) On completion of the reconstruction of Pier B, an
increase of 2 000 m2 of parking areas for ground
handling equipment is planned around this Pier,
thus increasing the area available there from 5 700
to 7 700 m2. The plan sees the end of 2000 as the
date for the completion of work on this Pier.

The space made available by the complete renova-
tion of the terminal will free up the area occupied
at present by temporary administrative offices
opposite the old freight terminal, thus providing an
area of 1 100 m2 which will be used for parking
groundhandling vehicles and equipment.

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Official Journal of the European Communities

18. 6. 98

(39)

(40)

groundhandling

The development plan also provides for an exten-
sion of the tarmac. This will take place first of all at
the eastern extremity, at the beginning of 1999,
with the primary aim of creating a de-icing area.
Part of the area freed up, amounting to several
hundred square metres, will be available for
parking
equipment. However,
outside the winter period, an area of more than
4 100 m2 could then be available for storing equip-
ment. A major extension is also planned in the
second phase to the west. Half of the area freed will
be used for new aircraft positions; the other half,
estimated at 14 to 16 000 m2, is to be used for
storing groundhandling equipment. Work on this
area should be completed by the end of 2000. The
plan provides for additional available space laid
aside for parking equipment of 21 to 23 000 m2 by
the beginning of 2001 (Table 2 of the development
plan).

D. Compliance with the criteria laid down in

Article 9(2)

including whether

The German authorities do not refer explicitly to
the question of whether their decision conforms to
the criteria laid down in Article 9(2) of the Direct-
ive,
the measures taken are
appropriate to the existing constraints. These meas-
ures concern, first, certain ramp handling opera-
tions such as the moving, loading and unloading of
the aircraft as well as the airside transport of
passengers and freight which require heavy and
bulky equipment, and secondly the external and
internal cleaning of the aircraft and aircraft services
including the removal of snow and ice and de-
icing, for which specialist equipment is required.
As regards the external and internal cleaning of the
aircraft, the airport has created no monopoly for
itself but is taking account of the principles of the
Directive by opening up the market to a minimum
of two suppliers and two self-handling users. Given
the present
the Commission
considers that
the space available would not at
present allow the opening-up of the market to the
degree provided for by the Directive, so that the
decision of the German authorities is commen-
surate to the constraints. Similarly, the decision
does not appear disproportionate as regards the
services affected.

situation airside,

(41) As regards the duration of the exemption, however,
the Commission believes an earlier opening-up of
the market
to be possible, on the following
grounds.

The overall restructuring plan ‘DUS 2000 Plus'
attaches great importance to the modernisation of
the airport and the development of its capacity.

However, the plan of measures presented, which is
incorporated in this development plan, calls for a
number of comments:

then be possible for

(cid:190) no mention is made at this level of the comple-
tion of work in Pier A. This pier should be
renovated by mid-1998 as was indicated in the
documentation on the alleged constraints. It
the embarkation
will
rooms, gates and passenger walkways to the
aircraft (for seven or eight aircraft positions) to
be used once again, mainly by Deutsche Luft-
hansa and associated companies. This should
lead to a significant reduction in the number of
both staircases
transporting
and buses
passengers. At the same time, the temporary
modules for embarkation would be relieved of
these passengers. As a result, there will be less
need for parking space and this area will be less
congested. Finally, the work on this pier, which
can in its present form accommodate one-third
of the gate parking positions, should allow for
additional positions with the space around
those positions for handling services,

for

(cid:190) as regards the duration of the exemption, the
plan does not take account of the fact that once
the structural work on Pier B has been
completed, some of the space occupied by the
construction materials can be freed up as work
progresses, thus making it possible to reclaim at
least part of the 7 500 m2 taken out of service
and to use it for parking handling equipment.
Also, the road junction under Pier B is due to
be reopened to traffic at that time. This would
make it possible to bring forward the date of
opening up the market to the time of comple-
tion of the external structural work, namely the
beginning of the year 2000,

(cid:190) although adaptation to the new rules estab-
lished by the Directive is not forgotten, as a
result of which sizeable areas for new suppliers
should be created, the Commission nonetheless
considers that the creation of such areas could
easily be given higher priority in the schedule
of work, in order to free more rapidly the space
required for parking new groundhandling
equipment.

The combination of these two facts (re-opening of
Pier A and completion of the structural work on
Pier B) and the possibilities of more efficient use of
the tarmac lead the Commission to conclude that
the measure proposed by Germany is scheduled for
a longer
term than is necessary and therefore
contravenes the principle under point (iii) of the
second subparagraph of Article 9(2) of the Dir-
ective.

IV. CONCLUSION

(42) D(cid:129)sseldorf Airport does not have structural space
and capacity problems such as to prevent
the
groundhandling market.
opening-up

the

of

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L 173/53

However, the fire in April 1996 severely disrupted
the operation of the airport, and, the consequences
in terms not only of requirements, equipment and
organisation but also of available space do not at
present admit of any other supplier for the categ-
ories of services referred to in the German decision
granting exemption. In accordance with the terms
of Article 9(2) of the Directive, D(cid:129)sseldorf airport
has undertaken in its plan to overcome the current
constraints so as to release an additional area of
more than 21 000 m2 by the beginning of 2001 to
allow the opening-up of the market to the degree
provided for by the Directive. However, the time-
table drawn up by the German authorities does not
take account of the fact that some of the temporary
equipment needed as a result of the fire, such as
vehicles for transporting passengers airside and
walkways, could be progressively withdrawn as the
reconstruction work progresses, especially with the
re-opening of the enlarged Pier A from mid-1998
and its positive implications for the airport
in
terms of space and traffic-flow.

it

shown that

Similarly, Germany has not
is
impossible to liberate part of the space around Pier
B on completion of the structural work, nor that
the scheduling of all the work at the airport would
not allow the areas on the tarmac designated for
parking aircraft and groundhandling equipment to
be made available more quickly.

(43)

The currency of the exemption should therefore be
limited to the end of the structural work on Pier B,
namely 1 January 2000,

HAS ADOPTED THIS DECISION:

Article 1

The exemptions granted to D(cid:129)sseldorf airport (Flughafen
D(cid:129)sseldorf GmbH) under Article 9(1)(b) and (d) of Dir-
ective 96/67/EC, and notified to the Commission on 17
October 1997, are hereby approved on condition that
Germany amends
they expire on 31
them so that
December 1999.

Article 2

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

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