98/631/EC: Commission Decision of 30 October 1998 on the application of Article 9 of Council Directive 96/67/EC to Cologne/Bonn airport (Flughafen Köln/Bonn GmbH) (notified under document number C(1998) 3336) (Only the German text is authentic) (Text with EEA relevance)
Date: 1998-10-30
Institutions: European Commission
Subjects: North Rhine-Westphalia, airport, derogation from EU law, market access, provision of services, transport infrastructure

11. 11. 98

EN

Official Journal of the European Communities

L 300/33

COMMISSION DECISION

of 30 October 1998

on the application of Article 9 of Council Directive 96/67/EC to Cologne/Bonn
airport (Flughafen K(cid:148)ln/Bonn GmbH)

(notified under document number C(1998) 3336)

(Only the German text is authentic)

(Text with EEA relevance)

(98/631/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
Cologne/Bonn airport (Flughafen K(cid:148)ln/Bonn GmbH) an
exemption to:

— limit self-handling to a single user for the categories
of services listed under points 3 and 4, with regard to
the physical handling of freight and mail whether
incoming, outgoing or being transferred, between the
air terminal and the aircraft, and point 5.4 (excluding
the transport of crew) of the Annex to the Directive.
This exemption is granted, on the basis of Article
9(1)(d) of the Directive, until 31 December 1999.

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.

the Directive,

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 30 September and 1
October 1998.

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 Cologne/Bonn
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 degree 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 and zur (cid:142)nderung weiterer luftrechtlicher
Vorschriften' (3) of 10 December 1997 transposing
Directive 96/67/EC into national law.

2. Situation regarding handling at Cologne/Bonn

airport

2.1. Presentation of the airport

Cologne/Bonn airport is 15 km to the south of Cologne.
It has three runways (two parallel ones and a transversal
one, the longest being 3 800 metres in length) and can
receive long-haul traffic. It is owned and operated by
Flughafen K(cid:148)ln/Bonn GmbH.

The airport has:

— a passenger terminal with two piers (B and C) each
with six gate parking positions. Traffic is increasing
rapidly, with 5,3 million passengers in 1996, 5,6
million in 1997 and 8,3 million forecast for 2000. The
terminal was built in the 1960s and opened to traffic
in 1970 for a capacity of 4 million passengers. Several
extensions and adaptations of the buildings have been
necessary to deal with the increase in traffic. In 1996
the decision was taken to build a new terminal
(Terminal 2) as an extension of the present terminal,
which should make possible an additional capacity of
6 million passengers per year; this will bring the total
is
capacity to 14 million when the new terminal
opened in 2000, making it possible to cope with
demand up to and beyond 2010;

— a large freight area parallel to the main runway which
has seen an appreciable growth in the amount of
freight handled, with 351 000 tonnes in 1996 (freight
and mail), 400 000 tonnes in 1997 and nearly 640 000
tonnes forecast for 2000.

The airport has been fully coordinated since 1997, in
particular due to capacity problems in the passenger
terminal, and its runway capacity is currently 52 move-
ments per hour during the day and 36 during the night.
With alterations to the runways and taxiways this should
make it possible to meet demand at least up to 2005. The
airport is, however, having problems with the local popu-
lation as regards noise and imposes very high taxes on
aircraft that are not classified as Chapter 3.

(3) Bundesgesetzblatt 1997 Teil I Nr 82, 16 Dezember 1997,

2885.

2.2. Groundhandling services at the airport

Some groundhandling operations are already open to
competition with several service suppliers and users self-
handling. This applies to ground administration (point 1
in the Annex to the Directive) (12 users and seven service
suppliers self-handling), passenger handling (point 2) (five
users and seven service suppliers), freight handling (point
4.l) other than operations between the aircraft and the
terminal, certain air-side operations (points 5.3 and 5.7)
and crew transport (part of point 5.4), aircraft services
(point 6), fuel and oil handling (point 7), aircraft main-
tenance (point 8) and flight operations (point 9).

Surface transport as described in point 10 of the Annex
does not apply since there is only one terminal, and
catering services (point 11) are open to two service
suppliers.

On 1 January 1999 all services will be opened up in
accordance with the Directive and German legislation on
services to third parties. The exemption granted by the
German authorities therefore concerns self-handling only
and allows only one user
to be present and not a
minimum of two as the Directive requires. It is also
limited to baggage handling (point 3), the loading and
unloading of the aircraft, the transport of passengers and
baggage between the aircraft and the terminal (part of
point 5.4) and freight and mail handling (point 4).

II. CONSTRAINTS REFERRED TO BY THE GERMAN

AUTHORITIES

The exemption granted by the German Government is
based principally on the space problems which the airport
will face when the groundhandling market is opened up
on 1 January 1999. This opening up of the market will
coincide with the extension work planned for the airport,
consisting in the construction of a rail link and Terminal
2. The German authorities consider that the space avail-
able on 1 January 1999 will allow for a second service
supplier, in line with the German legislation transposing
the Directive, as well as the user’s right to self-handling,
but will not permit the presence of a second self-handling
user because of the extension work.

They base their arguments in particular on the study
‘Kapazit(cid:132)tsauswirkungen f(cid:129)r den Flughafen K(cid:148)ln/Bonn
bei Zulassung weiterer Abfertiger auf dem Vorfeld f(cid:129)r den
Zeitraum von 1997 bis 2003' of 30 May 1997 conducted
by the Fraunhofer Institut f(cid:129)r Materialfluss und Logistik
at the request of the Cologne/Bonn airport managing
body.

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1. The Fraunhofer study

Generally speaking, the study carried out by the Fraun-
hofer Institut highlights the fact that despite the airport’s
fairly large total area of nearly 1000 ha the operational
area available is quite small due to statutory building
restrictions. The study shows that groundhandling opera-
tions are already difficult to carry out satisfactorily with
only the airport managing body supplying the services
concerned to third parties.

With the large amount of equipment and number of
vehicles required the airport is already obliged to use the
groundhandling areas to their capacity.

According to this study it will no longer be possible to
use the airport’s aircraft parking areas for parking ground-
handling equipment. Not only are there a large number
of aircraft using the tarmac for overnight parking - partic-
ularly around the passenger terminal as a stopover area
and near the cargo buildings for the night time operations
of groupage services with peak times between 2 and 3
a.m. — but it is also necessary to extend handling opera-
tions to cargo aircraft on spaces normally used for
groundhandling services for passenger aircraft close to the
passenger terminal. In addition, the airport has to close
runway 14R32L (a short parallel runway to the south) for
parking and servicing a dozen Fokker-type aircraft.

During the day, on the other hand, part of this runway
has to be used for parking groundhandling equipment.

if

According to the Fraunhofer Institut study the current
shortfall in parking space for groundhandling equipment
is estimated at 3 172 m2 static area (for parking alone) and
4 346 m2 dynamic area (including the area needed for
manoeuvring the equipment)
the groundhandling
services are supplied on areas reserved for this type of
operation. The shortfall will therefore be filled, according
to the Fraunhofer study, only by using a large number of
aircraft spaces. This general overloading, which is likely to
persist until the completion of the work on the tarmac of
the future Terminal 2, i.e. in principle by mid-1999 and
certainly by the End of 1999 for opening to passengers in
March 2000, means that the areas in question can only be
used to the limit of what is tolerable and acceptable under
the safety standards.

The simulations made by the Fraunhofer Institut in the
context of opening up the market take account of the
close connection between the number of operators —
suppliers or self-handling users — and the amount of
equipment and the number of vehicles needed. The study

stresses that each operator must have equipment in suffi-
cient quantities for his own needs, including during peak
periods, and to meet the requirements of his contract and
that these peaks vary over time as a function of the
customers handled and do not therefore necessarily corre-
spond with the airport’s peaks: According to the study,
admitting suppliers or self handling users under the
conditions required by the Directive would mean a
shortage of space of 9 420 m2 static area and 12 908 m2
dynamic area and an area of this size could only be freed
up by closing aircraft spaces.

2. Position of the German authorities

In their notification of 3 August 1998,
the German
authorities stated that the amount of handling equipment
at the airport was both necessary and sufficient to meet
the needs of the carriers and thought that it was none the
less possible to free up an area of around 2 600 m2
currently used to store unused equipment. On the other
hand, the reduced area needed by the airport for its own
handling operations due to its loss of market share as a
result of opening up to competition should also be taken
into account. Added to that, according to the German
authorities, is the area freed by TNT when the airline left
Cologne/Bonn for Li(cid:138)ge at the end of February 1998.
This area of around 8 000 m2 in office space and 2 000 m2
in handling area should, according to the airport author-
ities, be distributed between the other two groupage
services, DHL and UPS, although the airport is aware of
liberalisation measures and all
these entail. The
German authorities point out, in contrast, that priority for
this area must go to the minimum opening-up of the
market required by the regulation. They also take the
view that it is possible to build or organise parking areas
for the handling equipment at least on the periphery of
the new west freight area which will be ready in its initial
phase as from the autumn of 1998. This area is intended
for freight operations whose peak periods are in the
middle of the night. The handling equipment could thus
be parked on the area itself during the day.

that

According to the German authorities, the C area, which
has five aircraft spaces, is only half used, and even though
the use of this C area is temporarily restricted by work on
the future Terminal 2, the German authorities still feel
that it is possible to park equipment or vehicles there at
least until Terminal 2 is opened. By then new areas will
have been freed and parking handling equipment should
no longer pose any problems.

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11. 11. 98

Finally, a parking area could be used for light equipment,
at
temporarily, near the area for parking small
aircraft (GAT 3) next to the area reserved for buses.

least

configuration of baggage-handling areas permits
arrival of new operators.

the

All this temporary allocation of space can be regularised
once the area for the future Terminal 2 is ready, i.e. from
the summer of 1999 if everything goes to plan and at the
end of 1999 whatever the event.

IV. EVALUATION OF THE EXEMPTION IN THE
LIGHT OF THE PROVISIONS OF DIRECTIVES
96/67/EC

The German authorities therefore take the view that,
given the areas mentioned above, which can be freed up
immediately by the airport, a second supplier can be
admitted and the conditions concerning groundhandling
services for third parties met, as imposed by the German
regulation ‘Verordnung (cid:129)ber Bodenabfertigungsdienste
auf Flugpl(cid:132)tzen and zur (cid:142)nderung weiterer luftrecht-
transposing the Directive and in
licher Vorschriften'
service
particular
providers authorised at
for the operations
covered by this notification.

the annex giving the number of
the airport

This freed space also allows for the arrival of a new self
handling user, but, according to the German authorities, it
would not allow for the installation of a second user for
the same type of activities before the end of 1999 when
the end of work on the area around the future Terminal 2
will free up sufficient space for opening up in line with
the requirements of the Directive.

III. REACTIONS OF THE INTERESTED PARTIES

The various interested parties have been asked to give
the noti-
their opinions following the publication of
fication from the German authorities in accordance with
Article 9(3) of
the Directive. The airlines that have
submitted their opinions refute the claims of the German
authorities, contesting in particular the requirements set
out in the Fraunhofer study for the arrival of an extra
supplier or user. The airlines are particularly critical of the
estimate made in this study of 9 420 m2 static area for the
requirements of each new operator, given that at London
Heathrow KLM Groundservices handle 19 flights a day
with 6 000 m2 and at Frankfurt Delta self handles 15
flights a day, most of them over a short period, with 6 000
m2 for equipment and 2 000 m2 for personnel. They also
point out that in preparing for the increase in traffic in
the years ahead, especially with the construction of new
terminals,
is bound to have included the
organisation of ancillary services in its projects and thus
room for proper handling management,
the need for
space being measured as a function of requirements, not
the number of parties involved. These airlines take the
view, finally, that grouping general aviation together and
optimising equipment parking areas would free up the
the
extra space. Similarly, according to these airlines,

the airport

1. The rules in force concerning groundhandling

1.1. The scope for restricting 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 that are provided (self-handling
or service suppliers) and the level of traffic at the airport.
With an annual throughput of 5.4 million passengers in
1997 Cologne/Bonn airport must, in pursuance of Annex
5 to the ‘Verordnung (cid:129)ber Bodenabfertigungsdienste auf
Flugpl(cid:132)tzen and zur (cid:142)nderung weiterer luftrechtlicher
Vorschriften' of 10 December 1997 transposing the
Directive into German law, open up the groundhandling
market for third parties to a second supplier from 1
January 1999 and permit two users to self-handle from 1
January 1998.

The general rules governing self-handling for the service
categories listed in the German authorities’ notification
are set out in Article 7(2) of the Directive. Those rules
have been incorporated into the provisions of paragraph
3(2) of the German regulations transposing the Directive.
Under the terms of those various articles a Member State
may restrict self-handling to two users. The latter must
therefore be selected on the basis of relevant, objective,
transparent and non-discriminatory criteria.

space occupation make it

However, where specific space or available capacity
constraints, arising in particular from the rate of utilisa-
tion or of
impossible to
authorise self-handling to the extent provided for by the
Directive, the Member State concerned may, on the basis
of Article 9(1)(d), abolish that right or restrict it to a single
user.

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 constraints of available space or capacity
which justify it,

— be accompanied by a plan of appropriate measures to

overcome the restraints.

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.

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Thus, as again pointed out by the Commission in its
Decisions of 14 January 1998 on Frankfurt and Dussel-
dorf airports (4) the main aim of the Directive is to libera-
lise groundhandling services in transit. The restrictions
imposed on third parties consist of restrictions of freedom
of such parties to provide such services. By analogy with
the State measures restricting the freedom to provide
services (5), the measures likely to exclude or prohibit the
activities of service providers or, in the present instance,
those of users wishing to self-handle, even if they apply
without distinction 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.

1.2. Procedure

The German authorities undertook to make the entry into
force of the exemption decision subject to the Commis-
sion’s decision.

As again stated in its two decisions on the airports at
Frankfurt and Dusseldorf (6), the Commission must have
its examination directed towards:

— 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 the appropriate action that is intended to
overcome those constraints; 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
aims of
the Directive, absence of distortions of
competition, and the extent of the measure referred to
in Article 9(2) of the Directive.

Thus an exemption may not be granted with the objective
of allowing 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 put
forward in justification of the impossibility of opening up
the market within the time allowed. In addition,
in
accordance with the case law of the Court of Justice of
the European Communities, any exception must be inter-
preted strictly and when the scope of an exemption is

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

January 1998, OJ L 173, 18. 6. 1998, p. 32.

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

[1991] ECR p. 4007

and C-76/90, Sager: Dennemeyer,

[1991] ECR, p. 4221.

(6) See in particular judgments of 20 April 1978, joined cases 804
81/77 (1978) ECR 927, p. 945, and of 25 June 1992, British
Gas, C 116/91 REC PI-4071, point 12.

determined this must take account of the purpose 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, whether the decision taken
is appropriate to those constraints, and the measures put
forward to overcome them. Its examination drew upon
the file provided by the German authorities, and upon the
visit that it made to Cologne/Bonn airport after the noti-
fication and, finally, benefited from the technical assess-
ment made at its request by Symonds Travers Morgan.

2. Constraints referred to by the German author-

ities

2.1. Introduction

The on-the-spot inspection by the Commission’s depart-
ments and the expert assessment carried out at its request
confirm that Cologne/Bonn airport is the location of two
clearly distinct types of operation. During the day these
concern the carriage of passengers from the passenger
terminal and from some positions on the freight tarmac.
During the night several aircraft are parked on those
various positions. The freight
tarmac is thus almost
entirely occupied for freight and mail operations.

Aircraft link up with the two passenger terminal piers via
a multi-position system which enables various types of
aircraft to be received. It also enables certain types of
equipment such as airport tugs to be dispensed with.
Conversely the space available for receiving the other
types of handling equipment is limited.

The apron in front of the freight terminal also permits
quasi-contact (nose-in) parking which requires the use of
pusher tugs on departure, and also several distant posi-
tions where the aircraft themselves may manoeuvre, when
departing.

It is clear that, where possible, the search for space for
handling equipment and operations must, first and fore-
most, be made close to the aircraft, i.e. near the terminals.
However, this is only a matter of priority. The Directive
provides that the Member-State authorities must show
that it is impossible to open up the market to the level
required. The Member State must demonstrate the lack of
space for parking equipment and carrying out the opera-
tions intended without specifically setting quality criteria
for each of the positions.

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11. 11. 98

2.2. Space and capacity constraints

able during the evening since the equipment is then in
operation.

While being aware that there are significant peak periods
at the airport (in the morning and in the late afternoon as
regards passengers and between 10 p.m. and 3 a.m. for
freight operations) the Commission nevertheless feels that
the German authorities did not demonstrate that all of the
space currently available was in use.

It can be seen from these inspections that the space
additional to that mentioned by the German authorities
in the notification received by the Commission can be
made available for parking handling equipment close to
the aircraft positions in zone F, in front of the aircraft
and, at night, close to the passenger terminal.

(a) The available space

It is true that during the night-time peak period around 1
or 2 a.m. in the morning the number of aircraft parked
for the night exceeds the number of parking positions at
the airport. Indeed, for the last two years runway 14L32R
has been closed at night in order to enable a dozen
Fokker aircraft to park there. However, it has not been
proven that, although unsatisfactory, that closure consti-
tuted a major operating obstacle for the airport, and nor
did it make it impossible to open the market up to the
extent provided for by the Directive. That system could,
moreover, be maintained throughout the work on the
i.e. during the period corresponding to the
airport,
exemptions.
transport authorities were to
prohibit the use of the runway for parking aircraft, in the
opinion of the German authorities the positions would be
transferred to the west freight tarmac. Even in this case,
such use of the tarmac would not prevent equipment
from being parked around the area itself or on its exten-
sion.

the air

If

The standards and practices recommended by the Inter-
national Civil Aviation Organisation (ICAO) provide for
the provision of space on aircraft positions reserved for
safety requirements and equipment, depending on the
type of aircraft in question. The inspection visit to the
facilities while all of the aircraft positions were occupied
i.e. around 1.30 a.m. showed that even at that time a
substantial amount of space was still available for parking
handling equipment around point F02 (Lageplan (layout
plan) 04/11/97) near the DHL. company’s hangers and
also ahead of the large-capacity aircraft in zone F. In
addition, during the peak period most of the handling
equipment is in use and thus does not need to be parked.

The same applies around the passenger terminal which
receives aircraft for the night. It may be felt that parking
equipment close to the aircraft was not a problem during
the stopover periods, since in addition that equipment
had to be used during the early-morning departures.

Furthermore the freight area is almost deserted during the
day and certain aircraft positions could be used for
handling equipment. Those places could be made avail-

Furthermore, as shown by the file handed over by the
German authorities, the new west freight area must be
ready for use from the autumn of 1998. That 40 000 m2
area was planned to receive Fokker aircraft and equip-
ment. The planning also involves the building, in the
medium term, of additional freight facilities along that
area. The same applies to the back-up areas extending
from the new west freight area.

As pointed out in its decision on Frankfurt airport (7), the
Commission feels that the aim of the Directive means
that only the constraints mentioned in Article 9, which in
themselves are barriers to opening up the market, may
form a basis for an exemption in that this cannot include
the constraints produced by the airport
itself In the
decision of 23 July 1998 the German authorities them-
selves applied that rule by pointing out that the airport
could not reduce the available amount of space that was
needed to implement
the Directive by assigning the
premises and spaces left vacant by the departure of the
TNT company to other purposes. It was thus pointed out
as regards Frankfurt that it was not the lack of space in
itself that would make the market opening impossible,
but it was in the main the use to which the airport
decided to put the areas which were to become available
that could cause problems if any further operator were to
arrive. This would depend upon the extent to which the
additional space identified by the Commission’s inspec-
tion, and referred to above, proved to be inadequate.

(b) Space requirements

The scope of
restricted to self handling by a second user.

the German authorities’ exemption is

The size of the traffic volume handled by the user at the
airport, whether passengers or freight, and in decreasing
order, is one of the objective criteria for selecting users
they were
who could be authorised to self-handle if
limited in number. In view of the German authorities’
decision of 23 July 1998, of which the Commission has
been notified, it can thus be considered that the biggest
user in terms of traffic volume already has the right to
self-handle and that, when examining the exemption
introduced by the German authorities, account must be
taken of
the impact on equipment and space needs
arising from the self-handling by the second biggest user
at the airport, or by the third or fourth if the preceding
users are not interested.

(7) See footnote 5.

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On the basis of the flight schedules passed on by the
airport authorities it emerges that if that second user were
a passenger carrier it would, as part of its self-handling,
deal with almost 17 flights per day with a single peak of
four simultaneous flights. Basing oneself on the fact that
this carrier will continue to use small-capacity aircraft
during 1999 — the period intended to be covered by the
exemption — the equipment needed for that number of
flights could easily be parked in the positions referred to
above. The equipment needs at passenger-terminal level
are indeed often limited to light equipment
(trolleys,
starter units), and mobile equipment (gangways and buses
for distant positions); most of these positions do not need
any pusher tugs. However, if the carrier were to use larger
aircraft with more substantial equipment the additional
appliances could be parked ahead of the freight positions
or by transferring some of the trolleys to the approaches
to area D.

the airport

If the second operator were one of the groupage operators
at
the extra space requirement would be
minimal since the equipment could be parked on the
tarmac apron allocated to it, which is free during the day
and would be in use during the night.

The German authorities’ notification does not point to
any particular problem as regards the need for premises.
Moreover, a user who is self-handling generally has prem-
ises available at the airport and could make do with those
already allotted to him. This could more particularly
apply to the groupage operators at the airport. If there
were any extra need use, even if only temporary, could be
made, in particular, of certain premises in the freight area
which are currently empty.

out by the German authorities in their decision of 23 July
1998.

In this particular case it was pointed out that the airport
had enough spaces available to receive a second user.
Equipment parking is thus not a barrier to the imple-
mentation of the Directive. Moreover some of the baggage
trolleys are already parked on standby outside the
distribution building behind positions A11 — A15 (8).
Extra space behind positions A17 — A25 may be allotted
to empty trolleys that are parked on standby. As it
happens that space was completely unoccupied during
the Commission experts’ inspection during a part of the
day when the lack of activity should have left the trolleys
parked together and when the positions should normally
have been occupied.

The baggage-handling system consists of
automatic
chutes where one or several chutes are allocated in the
light of the flights handled, and of trolleys parked in front
of those chutes. In general terms the number of trolleys
standing before the chutes at a given point in time varies
not as a function of the number of operators — i.e. service
providers or self-handling users — but of the number of
flights handled, namely about 50 per day. Conversely the
problem may arise from the management of those trolleys
within the building. The latter has a central baggage
arrival point discharging into the chutes that are arranged
in two parallel lines. The trolleys are guided along two
parallel lines, each in one direction only. A comparison
with other airports and the number of flights handled per
day shows that the operators monopoly does not seem
essential. Tight management of the trolley flows, such as
takes place
already open to
competition, would enable an excessive number of trol-
leys waiting in the building to be avoided since, as already
stated above, these could be placed outside. It is one of
the functions of the airport management to ensure that all
airport activities are carried out properly. The airport
possesses the powers to ensure compliance with certain
rules of conduct and in particular to ensure that the
number of trolleys present does not exceed requirements
at a given moment. The airport may not cite constraints
arising from its own management. As the Commission
pointed out
the
inability to open up the market must be due to a factor
that is independent of the one cited.

in its decision on Frankfurt airport

in airports

that

are

Finally, the part of the exemption relating to item 3 of
the Annex to the Directive, namely baggage handling,
requires special attention. At that level, indeed, the prolif-
eration of operators could have a major impact on the
proper functioning of the airport as a whole. It is true
that, in general terms, operator proliferation causes an
increase in equipment and space requirements. However
those requirements do not correspond to those during the
airport’s peak periods — as is the case where there is an
operations monopoly — but to those during the peak
periods of each of the operators in order that these may
meet their customers’ needs. However, that increase is
offset by the monopoly holder’s loss of market share, or
that of the other operators and thus of equipment and
space for parking that equipment, as in any case pointed

The German authorities have thus not demonstrated that
it is impossible to open the market up to the extent
required by the Directive.

3. Measures planned

Article 9(2) of the Directive provides that all Member-
State decisions must be accompanied by a schedule of
appropriate measures that are intended to overcome the
constraints cited. In 1996 the airport decided to build a
new passenger terminal
(Terminal 2), with the corre-
sponding aircraft handling areas which will enable the

(8) Lageplan 04/11/97 Abbildung 3 (Layout plan 04/11/97, Figure

3).

L 300/40

EN

Official Journal of the European Communities

11. 11. 98

demand in the years ahead to be met via an additional
capacity of six million passengers. A railway line passing
under the future terminal, with a stop at that point, is also
planned. The new terminal should be open to the public
in the spring of 2000. This work is accompanied by the
building of new parking areas enabling operating and
equipment-storage areas amounting to almost 15 000 m2
to be released. The airport would reserve these in order
fully to meet the needs of the new service providers from
the beginning of 2000 onwards.

However, since in terms of this exemption the constraints
cited by the German authorities have not been proven, it
is not necessary to examine in closer detail the action
in order to overcome those
described by the airport
constraints.

Likewise, the absence of genuine constraints makes any
examination of the proportionate nature of the action, as
specified by Article 9(2) of the Directive, pointless.

V. CONCLUSION

The increase in traffic and the resultant extension of the
airport’s installations and capacity have caused Cologne/
Bonn airport, quite naturally, to construct new check-in
installations and thereby to reduce the areas available at
certain points,
for the groundhandling
equipment. However, the available areas referred to in this
decision, which are additional to those described by the
German authorities, have proved to be adequate for the
self-handling needs of a second user at the airport. Conse-

including that

quently, the German authorities have not demonstrated
that it was necessary to delay the arrival of a second user
until 1 January 2000. They have therefore failed to
demonstrate that it is impossible to open up the market
to the extent provided for by the Directive for the opera-
tions referred to in the notification recorded by the
Commission on 3 August 1998,

HAS ADOPTED THIS DECISION:

Article 1

The exemption decision granted to Cologne/Bonn airport
on the basis of Article 9(1)(d) of the Directive, as notified
to the Commission on 3 August 1998 does not meet the
conditions of Article 9 of the Directive. Consequently, the
Federal Republic of Germany may not implement that
decision.

Article 2

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