98/632/EC: Commission Decision of 30 October 1998 on the application of Article 9 of Council Directive 96/67/EC to Hamburg Airport (Flughafen Hamburg GmbH) (notified under document number C(1998) 3338) (Only the German text is authentic) (Text with EEA relevance)
Date: 1998-10-30
Institutions: European Commission
Subjects: Hamburg, airport, derogation from EU law, market access, provision of services, transport infrastructure

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Official Journal of the European Communities

L 300/41

COMMISSION DECISION

of 30 October 1998

on the application of Article 9 of Council Directive 96/67/EC to Hamburg
Airport (Flughafen Hamburg GmbH)

(notified under document number C(1998) 3338)

(Only the German text is authentic)

(Text with EEA relevance)

(98/632/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,

Having regard to the request for approval of the decision
of the German authorities of 30 July 1998 and after
consultation of those authorities,

After consulting the Advisory Committee,

Whereas:

I. SCOPE OF THE EXEMPTION NOTIFIED BY THE
GOVERNMENT OF THE FEDERAL REPUBLIC OF
GERMANY

1. The notification presented by the German
authorities

By letter of 30 July 1998, received by the Commission on
3 August 1998, the German authorities notified a request
to approve the decision of the Government of the Federal
Republic of Germany of 23 July 1998 to grant
to
Hamburg airport (Flughafen Hamburg GmbH) an exemp-
tion to:

— limit self-handling to a single user, and
— reserve for Hamburg Airport

(Flughafen Hamburg

GmbH) the provision of services to third parties,
for the categories of service listed under point 5.4 of the
Annex to the Directive. This exemption is granted, on the
basis of Article 9(1)(d) and (b) of the Directive, until 31
December 2000.

The notification specifies that in the event of no user
asking to be self-handling, a service provider will be
admitted, but only for a limited number of operations.

Pursuant to Article 9(3) of the Directive, the Commission
published an extract from the said notification in the

Official Journal of the European Communities (2) and
invited interested parties to submit comments.

In accordance with Article 9(5) of
the
German Government was consulted by the Commission
on the Commission’s draft evaluation on 24 September
1998. The German authorities responded to this consulta-
tion with written comments dated 1 October 1998.

the Directive,

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. For an
airport with a volume of traffic like that of Hamburg the
Directive provides for recognition of the right to self-
handle as from 1 January 1998 and opens up the
handling market to third parties as from 1 January 1999.
However, because of the specific situation and role of an
airport, and in particular 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 requires a minimum degreee of opening up
of both self-handling and services to third parties for four
categories of services located air-side, i.e. in a particularly
sensitive area of the airport. These categories concern
ramp handling, baggage handling,
fuel handling and
certain freight and mail handling operations.

Council Directive 96/67/EC also takes account of the fact
that,
in certain very special cases, severe space and
capacity problems 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. These exemptions can
therefore be only exceptional
in nature and are not
intended to automatically give airports an extra trans-
itional period in addition to that already provided for in
Article 1 of the Directive.

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

(2) OJ C 267, 26. 8. 1998.

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An exemption can be granted only on the basis of
specific space or capacity constraints. This is the basis on
which the German authorities have granted the above-
mentioned exemption in accordance with Article 3 of the
German ‘Verordnung (cid:129)ber Bodenabfertigungsdienste auf
Flugpl(cid:132)tzen und zur (cid:142)nderung weiterer luftrechtlicher
Vorschriften'
96/67/EC into
national law.

transposing Directive

Directive from 1 January 1998, has not been requested by
any carrier since that date.

Handling services employ around 700 staff at the airport,
around 200 of whom work for sub-contractors. Some of
the operations covered by the notification, such as pusher
tugs or the transport of passengers, are carried out by
subsidiaries of the airport.

2. Situation regarding handling

at Hamburg

airport

II. CONSTRAINTS REFERRED TO BY THE GERMAN

AUTHORITIES

2.1. Presentation of the airport

Hamburg Airport
is 64 % owned by the Land of
Hamburg, 26 % by the Federal State and 10 % by the
Land of Schleswig-Holstein. The situation of the airport
so close to the city poses may environmental problems,
and the immediate proximity of residential areas and
motorway infrastructure rules out any extension of the
airport beyond its current limits. Between 1990 and 1997,
the number of movements increased by 12,5 % and the
number of passengers by 27,7 %. With 9 million passen-
gers in 1997, 5 % up on the previous year, the aiport will
have to find a solution to its expansion problems. It
currently has 42 parking positions, 11 of which are gate
these positions are occupied
positions. Almost all of
during the night. Modifications which the airport
is
proposing to make in order to cope with the increase in
its traffic within its own limits (the construction of a new
Terminal 2 and the extension of an area for handling)
were the subject of a plan which was approved on 26 May
1998 and could therefore be implemented without further
formality. However, as has been the case with previous
modifications, those measures are currently being chal-
lenged by local residents, and no definitive schedule has
yet been agreed for the work on the new terminal. The
only work in progress is on the site of the future tarmac
(Vorfeld 2).

2.2. Groundhandling services at the airport

On the date of decision of the German authorities, most
groundhandling services were open to competition, the
services being provided either by independent providers
or by carriers serving both themselves and third parties.

The notification relates to point 5.4, i.e. the loading and
unloading of
the aircraft and the transport of crew,
passengers and baggage between the aircraft and the
terminal, and sets out, for such operations, to prohibit
self-handling and to reserve the provision of services to
third parties solely to the airport.

The file presented in support of the German authorities’
notification stated that the airport has already taken meas-
ures to deal with the overcrowding created by increased
traffic by optimising equipment parking space and
creating around 1 500 m2. An extra 2 750 m2 has also
been found at buildings level. The use of shuttles with
greater capacities has allowed their number to be reduced
from 20 to 14, and the number of baggage trolleys to be
reduced to 100.

Functional areas serve as storage for containers and
palettes which have greatly increased in number since
1995, in parallel with the growth in the number of aircraft
adapted for containers.

These measures have made it possible to cope with the
space problems for the time being. The file also states,
however, that the number of movements rose from 2 500
to 2 750 per week during the same period, with the
attendant
increase in the amount of groundhandling
equipment.

Referring in particular to the study commissioned by the
airport and carried out in 1996 by the Fraunhofer Institut
f(cid:129)r Materialfluss und Logistik, ‘Kapazitive und r(cid:132)umliche
Situation auf dem Flughafen Hamburg bez(cid:129)glich der
vorfeldseitigen Abfertigung', the German authorities take
the view that the space available would accommodate a
user who is self-handling but would not permit
the
market to be opened to any greater extent, in particular
regarding providers of services for third parties. They go
on to state that if no users were to be interested in
self-handling at Hamburg, the available space could be
allocated to an operator providing a limited number of
services to third parties, the space not being sufficient to
permit the full range of operations covered by the noti-
fication to be carried out.

According to the German authorities, the main constraint
is the lack of space for parking groundhandling equip-
ment; the premises necessary for the personnel of new
operators, on the other hand, posed no particular
problem.

Other services, namely baggage, freight and mail handling
(points 3 and 4 of the Annex to the Directive) and certain
air-side operations (points 5.1 and 5.2) should be open, in
conformity with the provisions of the Directive, as from 1
January 1999. Self-handling, which is recognised by the

The Fraunhofer study was based on an area of 19 869 m2
being available for groundhandling; this area would be
slightly reduced in the coming years as a result of the
closure of three aircraft positions during the construction
work on the new terminal (19 056 m2). Moreover, in the

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current situation with the airport as the sole provider, and
on the basis of 2 750 movements per week, the space
requirement was 19 799 m2. Consequently, as things now
stood, almost all the available space would be occupied
and a space shortfall would become apparent during the
construction work.

The arrival of each additional operator would require an
extra 2 230 m2 of space, to which would have to be added
600 m2 for the transfer of baggage on their trolleys.

However, the German authorities took the view that there
were various ways of meeting at least a part of the new
requirements. Firstly, by freeing around 400 m2 currently
used to store old groundhandling equipment which was
no longer used. This area could become available in the
very short term. Secondly, by finding ways of parking
equipment around the noses of aircraft for positions 21 to
23 which are used ‘nose in', this already being the practice
at gate positions 10 to 20, even though frontloading
certain aircraft can sometimes pose problems. The same
use of space around aircraft could be made for positions
31 to 42, which were soon to become gate positions.
Finally, the airport should take into account the loss of
some of
its own market share as a consequence of
opening to competition. According to the German
authorities, the airport should be able to accept one self-
handling user. In their decision of 23 July 1998, however,
the estimate that the amount of freed space would not be
sufficient to allow all the services mentioned in point 5.4
of the Annex to the Directive to be provided to third
parties, and that the provision of such services should
thus be reserved for the airport.

III. POSITIONS OF THE INTERESTED PARTIES

The various
interested parties have been asked to
comment on the publication of the notification from the
German authorities in accordance with Article 9(3) of the
Directive.

for

space

equipment,

or premises

After stating that self-handling did not necessarily require
additional
for
personnel, as this need was based on traffic and not on
the number of operators, the airlines and airline associ-
ations that expressed their opinions took the view that a
more rational use of the space for groundhandling and a
reduction in the equipment currently used by monopoly
provider should make it possible to find space for the
equipment of new operators. These measures, together

with the removal of old equipment, especially containers
no longer used, should make up for a large part of the
shortfall of available space. Certain airlines felt that the
need for baggage transport was dependent on traffic and
the short
not on the number of operators, and that
distance between aircraft and terminal made additional
equipment unnecessary. These airlines also stress the
importance of real opening-up of the market and the
need, where there are problems of space, to give priority
to the arrival of a service provider that can provide
services to third parties which are not limited to a single
airline.

IV. EVALUATION OF THE EXEMPTION IN THE LIGHT

OF THE PROVISIONS OF DIRECTIVE 96/67/EC

1. The rules in force concerning ground handling

1.1. The scope for limiting access to the market

Council Directive 96/67/EC provides for the market to be
opened up to different extents as a function of the way
groundhandling services are provided (self-handling or
service suppliers) and the level of traffic at the airport.
With annual traffic of almost 9 million passengers in
1997, Hamburg airport must, in accordance with Annex 5
to the ‘Verordnung (cid:129)ber Bodenabfertigungsdienste auf
Flugpl(cid:132)tzen und zur (cid:142)nderung weiterer luftrechtlicher
Vorschriften' (3) of 10 December 1997 transposing the
Directive into national
for
groundhandling services for third parties to two users
from 1 January 1998.

law, open up the market

The general rules governing self-handling and the provi-
sion to third parties of the categories of service listed in
the German authorities’ notification are set out in Articles
6(2) and 7(2) of the Directive. Those rules have been
incorporated into the provisions of Article 3(2) of the
German regulations transposing the Directive. Under the
terms of these various articles a Member State may restrict
self-handling to a minimum of two providers or self-
handling users.

However, where specific space or
available-capacity
constraints, arising in particular from the rate of utilisa-
tion or of space occupation, make it impossible to admit a
new service provider and/or to authorise self-handling to
the extent provided for by the Directive, the Member
State concerned may, on the basis of Article 9(1)(b) and/or
to a single provider and/or
9(1)(d), restrict
prohibit self-handling or limit it to a single user.

that right

However, under Article 9(2) any such exemption must:

— specify the category or categories of groundhandling
services for which the exemption is granted and the
specific contraints of available space or capacity which
justify it,

— be accompanied by a plan of appropriate measures to

overcome the contraints.

(3) Bundesgesetzblatt 1997 Teil 1 Nr. 82, 16. 12. 1997; 2885.

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Moreover, pursuant to Article 9(2), it must not:

— unduly prejudice the aims of the Directive,

— give rise to distortions of competition,

— extend further than necessary.

As the Commission pointed out in its Decisions of 14
January 1998 on Frankfurt and Dusseldorf airports (4), the
main aim of the Directive is to liberalise groundhandling
services. The restrictions imposed on third parties are
restrictions on the freedom of such parties to provide
such services. By analogy with the State measures
restricting the freedom to provide services (5), the meas-
ures likely to exclude or prohibit the activities of service
providers or,
those of users
wishing to self-handle, even if they apply without distinc-
tion both to national service providers or users and to
those in other Member States, must be justified by over-
riding public-interest requirements and not by economic
factors and must, moreover, be in proportion to the aims
pursued.

in the present

instance,

1.2. Procedure

The German authorities have undertaken to make the
entry into force of the exemption decision subject to the
Commissions’s decision.

As stated in its two decisions on the airports at Frankfurt
and Dusseldorf (6), the Commission must focus its exam-
ination on:

— the existence and scope of the constraints justifying
the exemption and the inability to provide openings
to the extent provided for by the Directive; only space
and/or capacity constraints may be taken into account,

— the plan of appropriate measures intended to over-
come those constrainsts; that plan must be credible
and unconditional and include a timetable for the
implementation of those measures,

— conformity with the principles of compliance with the
the Directive, absence of distortions of
the measure, as

aims of
competition, and the extent of
referred to in Article 9(2) of the Directive.

The aim of granting an exemption is not to give the
airport a further 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 put forward in justification of
the impossibility of opening up the market within the
time allowed. In addition, in accordance with the case law

(4) Commission Decisions 98/387/EC and 98/388/EC of 14

January 1998, OJ No I, 173, 18. 6. 1998, p. 32.

(5) Judgments of 25 July 1991, M(cid:130)diawet,

[1991] ECR p. 4007

and C-76/90, S(cid:132)ger: Dennemeyer,

(6) See point 3 below.

[1991] ECR, p. 4221.

of the Court of Justice of the European Communities,
any exception must be interpreted strictly and the scope
of any exemption must be determined on the basis of the
purpose of the measure in question (7).

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

the Directive,

the
In accordance with Article 9(4) of
Commission has made a detailed analysis of the alleged
space and capacity constraints, whether the decision taken
is appropriate to those constraints, and the measures put
forward to overcome them. Its examination was based on
the dossier provided by the German authorities, its visit to
Hamburg airport after the notification by the German
authorities and, finally, the technical assessment made at
its request by Symonds Travers Morgan.

2. Space constraints referred to by the German

authorities

With almost 9 million passengers in 1997, Hamburg
airport is an important regional hub which accomodates
85 airlines serving 124 destinations. Situated very close to
the city of Hamburg and surrounded by residential build-
ings, the airport cannot easily expand beyond its current
boundaries. Internal development and optimum use of
space will be required to cope with the increase in traffic.
In order to achieve this, the airport plans to develop its
capacity by rebuilding Terminal 2 and creating 11 addi-
tional aircraft positions — this number being increased to
14 in the second phase of work. Although the work is
currently well advanced, the spaces have not yet been
officially designated as aircraft positions.

At present, the tarmac has 42 parking positions, 32 of
which are for category C aircraft. The majority of these
positions are occupied during the night. The dossier
provided by the German authorities states that the lack of
space for parking handling equipment is particularly due
to the large number of aircraft parked overnight.

2.1. The space available

the

experts

During their visit made after the notification by the
German authorities,
appointed by the
Commission noted that the space around the noses of
aircraft parked ‘nose in' was not fully utilised. The airport
authorities explained that the proximity of the traffic lane
prevented equipment being parked there for
safety
reasons. This argument is unsatisfactory as the space in
question is used for parking in many international
airports in the same situation, and even at certain posi-
itself. Clear demarcation of
tions at Hamburg airport

(7) See in particular the Judgment in case C116/91 British Gas

[1992] ECR I-4071, point 12.

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the spaces for parking equipment and an inspection by
the supervisor, as is the practice at other airports, would
solve any problems. Some airports use concrete or plastic
blocks to protect the traffic lane. The standards and prac-
tices recommended by the International Civil Aviation
Organisation (ICAO) — and in particular Annex 14 to the
Convention on international civil aviation — which form
the basis for national recommendations on aircraft posi-
tions, provide for the provision of marked spaces as safety
areas but also for parking equipment, for different types
of aircraft. It does not therefore seem impossible to use
the space in question. According to the report requested
by the Commission, and depending on the type of aircraft
to be received, an area 20m by 6m can be freed on either
side of the nose of the aircraft. This area of twice 120 m2
per position means that over 2 100 m2 could be used for
equipment just on the 9 positions along the service road
in front of the freight section.

The use of a large number of parking positions during the
night does indeed make for intensive use of the tarmac
and a certain amount of congestion early in the morning.
Nevertheless, as stated by the German authorities, the
period of congestion which occurs when the aircraft
parked overnight are departing is relatively short, as most
of the aircraft leave first thing in the morning (which
makes the congestion worse). At that time, the handling
equipment used to prepare aircraft for departure is also in
full use in the area in question. Using the area around the
aircraft positions for parking equipment, some of which
was used the night before when the aircraft arrived, con-
sequently poses no problem during the night.

The dossier attached to the decision of
the German
authorities also highlights the need for 20 000 m2 of space
to park equipment for around 230 flights per day. The
number of flights handled is 29 % more than at Stuttgart
airport, for example, which handles 180 flights a day. The
amount of additional space required is estimated as being
60 % greater. Even taking into account the fact that larger
aircraft need larger equipment which in turn requires
more space, and that the type of equipment may have
different characteristics, the difference still seems exces-
sive. In the figures, the difference is explained by the

50 % coefficient between the static area of the equipment
(floor
surface occupied by the equipment) and its
dynamic area (static area + area required to move the
equipment): this coefficient is only 37 % in the study
carried out by the Fraunhofer Institute in the context of
the exemption granted to Cologne/Bonn airport. Once
again, even though a certain difference can be explained
according to whether the material is parked in line or
regrouped in square spaces, which mean that more space
is required to move the equipment, the difference is still
too great.

The dossier attached to the decision also refers to a slight
reduction in the available space (around 800 m2) during
the work on Terminal 2 because of the closure of three
positions. The plan of works (8), however, indicates the
closure of the aircraft positions and a diversion of the
traffic lane around them, but it does not show any space
for parking material at the nose-end of the positions. This
loss of space is not therefore justified.

The derogation is for the reservation for Hamburg airport
only of all forms of handling for the activities listed under
point 5.4 of the Annex to the Directive, i.e. for loading
and unloading the aircraft and transporting passengers,
crew and baggage between the aircraft and the terminal.
One of the arguments used as a basis for the derogation
relates
experienced when transporting
baggage and loading it in the baggage distribution room.

to problems

The baggage distribution room is very small
extremely congested at certain peak times.

and

The distribution system comprises a sorting system with
automatic chutes down onto the trolleys for different
destinations. Inside the baggage distribution building, the
number of trolleys required is dependent on the number
of flights to be handled at any given moment, and not on
the number of operators. Strict control of trolley flow and
of the number of trolleys allowed into the area, accepting
only the number of
required, would avoid
trolleys
congesting the baggage distribution room. Baggage is
managed in this way at
already open to
competition, as the airport administration and supervision
can impose the observance of certain rules on all oper-
the system operates
in order
ators
smoothly. It has not
is
impossible to allow other operators into the baggage
sorting building. It should nevertheless be recognised that
an increase in the number of operators can complicate
trolley movements where waiting
the management of
space would be too restricted.

therefore been shown that

to ensure that

airports

it

The problem is therefore linked to the general lack of
space at the airport.

(8) Annex 5 to the dossier provided by the German authorities.

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The decision of the German authorities includes the poss-
ibility of freeing sufficient space to accommodate another
operator. Improving the use of the existing space and
freeing space used for old equipment would provide an
additional area in the southern part of the airport. This
area would not be sufficient to accommodate a third
operator, however, whether as a service provider or a
self-handling user.

2.2. The choice of the German authorities

In their decision of 23 July 1998, the German authorities
expressed a preference for a self-handling user rather than
a provider of handling services to third parties because of
the lower space requirements of a user. They also said that
where there were no requests from users for self-handling
a service-provider would be admitted, but
for limited
operations due to the lack of space.

In the light of these points and given the fact that no user
has requested self-handling since that possibility was
recognised by the Directive as from 1 January 1998 and
the opening of the market to a provider will enable the
latter to provide services for all users at the airport, it is
worth looking at whether opening-up to a provider is
impossible, as the German authorities allege.

The volume of traffic handled by the user at the airport,
whether passengers or freight, and in decreasing order, is
one of the objective criteria for selecting users who could
be authorised to self-handle if they are limited in number.

If Lufthansa, the main airline at the airport, were to opt
for this right to self-handling for its own fleet and the
fleet of the carriers in its group, in accordance with the
Directive,
impact on space
requirements owing to the number of flights involved.
The amount of additional equipment required can be
estimated by examining the flight timetable.

there would be a major

Account must be taken of the fact that, in general terms,
operator proliferation causes an increase in total equip-
ment requirements since each operator then has to cater
for its own peaks, wich do not necessarily coincide with
those of the airport, as in the case of a single operator. On
the other hand, the monopoly operator needs less equip-
ment due to the loss of some of his customers.

Given the estimate made by the German authorities of an
extra 2 300 m2 needed per additional operator and self-
handling operations by the main user, Lufthansa, the

number of flights at the airport and the timetable of those
flights would mean that the latter’s needs amount to
almost 45 % of equipment, currently used by the
monopoly operator. In its capacity as a sole service
provider, the airport uses an area of almost 22 000 m2.
Lufthansa would thus need around 9 000 m2. The effect
on the needs of the monopoly operator, given the flight
timetable, can be estimated at a reduction of close to
24 %, i.e. 4 800 m2. The additional space needed due to
the arrival of Lufthansa would thus be around 4 200 m2,
i.e. 21 %.

An analysis of the data in the event of the arrival of a
provider of services for third parties indicates that the
largest number of aircraft that can be serviced without
impacting on the peaks of the airport as the provider of
groundhandling services
traffic.
Handling additional flights would mean a lesser need of
equipment, and hence space, on the part of the monopoly
operator.

is put at 10 % of

The total space need would be around 10 %. Even taking
an additional 15 % as the figure, the greater need for
space is less than in the case of a user self-handling.
Should this provider also receive clientele from Lufthansa,
requirements would be less because of the effect on the
needs of the current monopoly operator.

The German authorities have not therefore demonstrated
that the arrival of a service provider is impossible.

3. Measures planned

In accordance with the provisions of Article 9(2) of the
Directive, the German authorities must present a schedule
of appropriate measures designed to overcome the
constraints cited.

The plan to expand the airport provides for the demoli-
tion in 1998 and rebuilding of Terminal 2, which should
be open by the beginning of 2001. This work will accom-
pany the construction of a new tarmac (‘Vorfeld 2') (9)
which should make for 11 aircraft positions initially, in
2001, and 14 subsequently. This tarmac will be linked to
the terminal area by a new road.

This work should free a total area of 46 000 m2, 13 000 m2
of which would be reserved for groundhandling.

However,
these projects are encountering legal and
administrative problems and there is still some uncer-
tainty as to when work on terminal 2 will commence and
be completed and as regards the number of aircraft posi-
tions on the ‘Vorfeld 2' tarmac.

(9) Ausbaustufe Vorfeld 2 (Tarmac 2 extension) — Plan 16/12/96,

Annex 7.

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However, Article 9 of the Directive requires the planned
measures to surmount the constraints encountered to be
uncertainty
credible
surrounding
the
Commission cannot consider them to be planned meas-
ures as defined by Article 9 of the Directive.

irrevocable. Given

the projects

submitted,

therefore,

and

the

That said, the dossier presented shows that in any event
the airport undertakes to free the space needed to open
up the market to the degree provided for by the Directive
and the German regulation transposing it by the end of
the period mentioned in the exemption by organising, in
particular, the areas needed to park the groundhandling
equipment on the ‘Vorfeld 2' tarmac, whether or not it
has received the requisite licenses for use as aircraft posi-
tions. The Commission therefore takes the view that such
undertakings amount to planned measures to overcome
the constraints referred to and encountered within the
meaning of Article 9(2) of the Directive.

4. Compliance with the criteria of Article 9(2) of the

Directive

Under Article 9(2) exemptions must not:

German authorities have themselves stated that a provider
would be admitted where there are no requests from users
for self-handling. Since the exemption provides for the
admission of a provider only in the event of no requests
for self-handling, this could be until the end of the period
set for the exemption. The very wording of the exemption
thus indicates that it extends further than is necessary.

As regards the duration of the restriction on a second
operator over and above the airport, whether this operator
be a provider or self-handling user, the exemption covers
the period of
the airport and concerns
loading, unloading and the transport of passengers, crew
and baggage. The current problems of space at the airport
affecting the parking of groundhandling equipment until
completion of the work justify the proportionality of the
measure in terms of its duration and scope.

the work at

The Commission finds that an exemption which, in the
absence of any actual self-handling, excludes the arrival of
any new provider of groundhandling services after 1
January 1999,
the date set by the Directive for the
opening-up of this market, does not meet the conditions
of Article 9(2).

‘(i) unduly prejudice the aims of this Directive;

V. CONCLUSION

(ii) give rise to distortions of competition between
suppliers of groundhandling services and/or self-
handling airport users;

(iii) extend further than necessary.'

The limited space available at Hamburg airport means
that only one new operator can be admitted for the opera-
the Annex to the
tions referred to in point 5.4 of
Directive.

As regards the aims of the Directive as mentioned in (i),
the very title of the Directive explains that the aim is
access to the market. The point of the Directive implies,
however, that this access should be real. The fifth recital
states that
‘the opening-up of access to the ground-
handling market should help reduce the operating costs
of airlines and improve the quality of service provided to
airport users'. Opening-up in theory, without actually
happening in fact, as has been the case for self-handling
since 1 January this year, would thus detract from the
aims of the Directive. In contrast, opening-up which also
helps to improve the services provided to, and the prices
paid by, many users, as referred to in the fifth recital, will
help to achieve the aims of the Directive by introducing
competition between providers.

Subparagraph (iii) stipulates that an exemption must not
extend further than necessary. The exemption granted by
the German authorities excludes all providers of services
to third parties up to 31 December 2000, even though the

Since:

— the German authorities have not shown that it is
impossible to admit the arrival of a provider instead of
a user, and as

— no user has

requested self-handling at Hamburg

airport since such a possibility has existed,

and in order:

— not to unduly prejudice the aims of the Directive, and

— to ensure that the exemption does not extend further

than necessary,

the German authorities must, insofar as no user begins
self-handling, in any of the space available at Hamburg
airport, by 31 December 1998, allow the arrival of a
provider of services to third parties as from 1 January
1999 and consequently prohibit self-handling as from
that date and up to 31 December 2000,

L 300/48

EN

Official Journal of the European Communities

11. 11. 98

HAS ADOPTED THIS DECISION:

The exemption is granted until 31 December 2000.

Article 1

The decision to grant an exemption to Hamburg airport,
is
as notified to the Commission on 3 August 1998,
hereby approved by the Commission provided that the
Federal Republic of Germany amends it as follows:

For the activities referred to in point 5.4 of the Annex to
the Directive:

— limiting self-handling to a single user and reserving
the provision of services to third parties for Hamburg
airport on condition that a user begins self-handling,
using the space available, before 31 December 1998
and that the German authorities have notified the
Commission beforehand;

— prohibiting self-handling as from 1 January 1999
where the German authorities have not notified the
Commission by that date that a user has begun self-
handling operations in the space available by 31
December 1998.

Article 2

The Federal Republic of Germany shall notify the
Commission of
the exemption decision amended in
accordance with Article 1, before it enters into force.

Article 3

This Decision is addressed to the Federal Republic of
Germany.

Done at Brussels, 30 October 1998.

For the Commission

Neil KINNOCK

Member of the Commission