1999/326/EC: Commission Decision of 27 April 1999 on the application of Article 9 of Council Directive 96/67/EC to Roissy-Charles de Gaulle airport (notified under document number C(1999) 1067) (Only the French text is authentic) (Text with EEA relevance)
Date: 1999-04-27
Institutions: European Commission
Subjects: France, airport, carriage of passengers, provision of services, transport infrastructure

L 124/14

EN

Official Journal of the European Communities

18. 5. 1999

II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 27 April 1999

on the application of Article 9 of Council Directive 96/67/EC to Roissy-Charles
de Gaulle airport

(notified under document number C(1999) 1067)

(Only the French text is authentic)

(Text with EEA relevance)

(1999/326/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 French authorities of 8 January 1999, and after
consulting those authorities,

After consulting the Advisory Committee,

Whereas:

I. SCOPE OF THE EXEMPTION NOTIFIED
BY THE GOVERNMENT OF THE FRENCH
REPUBLIC

1. The notificiation presented by the French

authorities

(1)

By letters of 8 and 27 January 1999, as registered
by the Commission on 13 and 27 January 1999,
the French authorities notified a request to approve
the French
the decision of
Republic of 8 January 1999 to grant to Roissy-

the Government of

(1) OJ L 272, 25.10.1996, p. 36.

Charles de Gaulle airport
exemption:

(hereinafter CDG) an

(cid:190) as regards terminal CDG 2:

to ban self handling and to reserve for the
airport the provision of services to third parties
concerning the transport of passengers between
the terminal and the aircraft; category of
services listed under point 5.4 of the Annex to
the Directive. This exemption is granted, on the
basis of Article 9(1)(b) and (d) of the Directive,
until 31 December 2000,

(cid:190) as regards terminal T 9:

(cid:190) to reserve for the airport the provision of
services to third parties for the categories of
services listed under points 3, 5.1, 5.2, 5.4
concerning the loading and unloading of
the aircraft and the transport of baggage
between the terminal and the aircraft, along
with the services listed under 5.5 and 5.6 of
the Annex to the Directive, on the basis of
Article 9(1) (b),

(cid:190) to limit

service
to two the number of
providers and users authorised to self handle
for the category of services listed under
point 2 of the Annex to the Directive. This
exemption is granted, on the basis of Article
9(1) (a) and (c) of the Directive, until 1 April
2000.

18. 5. 1999

EN

Official Journal of the European Communities

L 124/15

This decision is based on the provisions of the
Decree of 22 December 1998 restricting access to
the market for certain categories of groundhandling
operations at the airport, in particular Article 4,
which lays down special provisions for the opera-
tions covered by this exemption.

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.

(2)

(3)

(4)

(5)

(6)

The decision also provides for a restriction in all
terminals, CDG 1, CDG 2 and T9, where passenger
and freight transport is concerned, to three self
handling airlines for each of the services listed
under categories 3, 4, 5.2, 5.4, 5.5 and 5.6. This
restriction stems solely from the decision of the
Member State in application of Article 7(2) of the
Directive and is thus not affected by the present
Decision.

the Directive,

the
Pursuant
to Article 9(3) of
Commission published an extract of
this noti-
fication in the Official Journal of the European
Communities (1) of 6 March 1999 and invited inter-
ested parties to submit comments.

In accordance with Article 9(5) of the Directive, the
French Government was
the
Commission on the Commission’s draft evaluation
on 18 and 24 March 1999. The French authorities
responded to this
consultation with written
comments dated 19, 25 and 26 March 1999.

consulted

by

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 the volume of
traffic that Roissy-Charles de Gaulle has
the
Directive provides for recognition of the right to
self handle as from 1 January 1998 and opens up
the groundhandling 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.
a minimum degree of
freedom but

requires

(1) OJ C 64, 6.3.1999.

(7)

(8)

(9)

(10)

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 transitional
period in addition to that already provided for in
Article 1 of the Directive.

An exemption can be granted only an the basis of
specific space or capacity constraints. This is the
basis on which the French authorities have granted
the abovementioned exemption in accordance with
Article R-216-7 of the French Civil Aviation Code,
as ammended by Decree No 98-7 (2) of 5 January
1998 transposing Directive 96/67/EC into national
law.

2. Situation regarding groundhandling at

Roissy-Charles de Gaulle Airport

2.1. Presentation of the airport

The airport of Roissy-Charles de Gaulle is currently
the biggest airport
in the Paris area with 38,5
million passengers in 1998, putting it ahead of
Orly (just over 25 million). This airport is made up
of two main terminals: CDG 1 in the north and
CDG 2 to the south, plus terminal T 9, which is
more restricted and reserved for certain charter
flights.

The airport is fully coordinated within the meaning
of Article 2(g) of Council Regulation (EEC) No
95/93 (3) on common rules for the allocation of
slots at Community airports because of problems of
runway capacity which is currently at 84 move-
ments per hour. With the construction of two new
runways for landing, to the north and to the south,
this capacity should permit up to 96 movements
per hour as from the summer of 1999 (opening of
the third runway) and 120 movements once the
fourth runway is open. Nevertheless, the airport has
major noise problems with local
residents, as
recently illustrated by the problem surrounding the
decision to construct these new runways and the

(2) Decree No 98-7 of 5 January 1998 amending the Civil Avia-
tion Code (Part II) relating to groundhandling services in airp-
orts, Official Gazette of the French Republic, 7.1.1998, p. 293.

(3) OJ L 14, 22.1.1993, p. 1.

L 124/16

EN

Official Journal of the European Communities

18. 5. 1999

commitments undertaken by the operator and the
French authorities, especially regarding the posi-
tioning of these runways to the east, restricting
them to the sole function of
landing and the
number of movements at the airport limited to 84
during certain periods of the day.

(11) Air traffic at CDG 2 increased from 28,4 million
passengers in 1995 to 38,5 million in 1998. Simi-
larly, at
traffic rose from 1,2
million passengers in 1995 to 1,9 million in 1998.

the T 9 terminal

(12)

(13)

The new installations completed (hall F 1 put into
service in the spring of 1998) and projected at
CDG 2 (opening of
the hall F 2 for the 1999
summer season, opening of the E 1 hall for the
2001 summer season, opening of the E 2 hall for
the 2003 summer seasons, opening of the E 3, F 3
and E 3 and F 4 halls between 2005 and 2010) and
the entry into service of the third runway in 1999
and the fourth in 2001 should make it possible, in
technical terms, to cope with an increase in traffic
of 6,3 % (on average) for the years 1999 to 2004.
The projects to upgrade CDG 2 and T 9 will also
mean an increase in traffic of more than double in
terms of area for T 9.

2.2. Groundhandling services at the airport

The groundhandling services at the Paris airports of
Orly and Roissy-Charles de Gaulle are currently
open to competition in accordance with the provi-
sions of the Directive and the French Regulation.
Two Decrees issued by the Minister for Infrastruc-
ture, Transport and Housing on 22 December 1998
limit the number of operators at these airports for
certain groundhandling categories listed in Articles
6(2) and 7(2) of the Directive. The provision of
these services for third parties is thus put out to
tender. At Roissy-Charles de Gaulle only the activi-
ties of passenger transport in connection with the
CDG 2 terminal and activities concerning baggage
handling, ramp handling and passenger handling at
terminal T 9 are now restricted beyond the possi-
bilities provided for within the normal framework
of opening up the market and are thus the subject
of this exemption.

II. CONSTRAINTS REFERRED BY THE FRENCH

GOVERNMENT

(14)

The exemption granted by the French Govern-
ment (1) is based principally, on the one hand, on

(1) Decree of 22 December 1998 restricting access to the ground-
handling market at the airport of Roissy-Charles de Gaulle,
Official Gazette No 302, 30.12.1998, p. 19950.

the problems of space encountered by the airport,
namely:

(cid:190) at CDG 2:

(cid:190) current organisation of

the fleet of 17

aerobuses and 47 conventional buses,

(cid:190) lack of space to provide a parking area for

the full fleet,

(cid:190) current structure of the terminal and the

halls in it (A, B, C, D and F 1),

(cid:190) saturation of the aprons,

(cid:190) congestion of the service roads,

(cid:190) at T 9:

(cid:190) insufficient

space in the terminal

(for
baggage sorting area) and air-side to meet all
the needs of the operators,

and, on the other hand, on the implications of
opening up the market to the degree provided for
by the Directive:

(cid:190) at CDG 2 through:

(cid:190) the level of investment and maintenance
costs which would automatically price ADP
out of the market; even given the high level
of quality, the quality/price ratio would be
negative,

(cid:190) the growing difficulty of finding spare parts,
which would increase maintenance costs,

(cid:190) the lack of access to all

flight,
which would mean restricting access to the
market,

types of

(cid:190) the lack of access to all parking positions,
which would mean restricting access to the
market,

(cid:190) at T 9 through:

(cid:190) a reduction in capacity terminal and air-side
caused by work in the terminal (installation
of the control baggage system (CBS) and
creation of additional space) and air-side
(construction of an air-side building) and
through the opening-up of the market,

(cid:190) the physical

impossibility of admitting a
second provider of ramp-handling services
(categories 3 and 5),

(cid:190) the negative impact of opening up the
the services

market on the quality of
provided.

18. 5. 1999

EN

Official Journal of the European Communities

L 124/17

A. CDG 2 terminal

(18)

Transport operations are provided:

(15) CDG 2 currently has five halls (A, B, C, D and F 1)
and can handle 24,5 million passengers, i.e. 70 %
of the airport’s traffic, or 247 400 movements a
year (1). This terminal handles traffic from Air
France, mainly in halls C and F 1, and from almost
30 other airlines. The rate of aircraft contact at the
gate at CDG 2 is 45 to 50 %, which i.s fairly low
compared with CDG 1 (93 %). The number of
aircraft in remote positions and the proliferation of
small carriers due to the Air France hub make for a
lot of passenger transport. It is this category of
services,
transport of passengers between the
aircraft and the air terminal (part of point 5.4 of the
Annex to the Directive) for which the exemption
concerning CDG 2 has been granted.

A.1. Transport of passengers

(16)

This passenger transport operation to remote posi-
tions is performed:

(cid:190) by 47 conventional buses providing a shuttle
between the foot of the aircraft and the depar-
ture or arrival lounges (one per hall),

floor of

(cid:190) by 15 aerobuses (plus two aerobuses for mainte-
system to enable
nance) with an elevator
passengers to board and/or disembark directly
at the aircraft door, on the one hand, and at the
first
the halls, on the other. This
system, which was chosen when the terminal
was constructed, the terminal being equipped
for operations of this kind, allows steps to be
dispensed with at the foot of the aircraft and
guarantees safe passenger transport at all times.
On. the other hand, it is an unwieldy system
and very expensive to purchase,
requiring
outsize taxiways and special driving qualifica-
tions. It is currently only used at CDG 2 and in
certain North American airports,
such as
Montreal, because of climatic conditions, and
production has now stopped on it, as far as the
sizes used in Paris are concerned.

(17)

The aerobus service handles 54 % of the passen-
gers in remote positions at CDG 2, which amounts
to 38 % of aircraft movements at that terminal.
long-haul
Priority is given to the transport of
passengers.

(1) 1997.

(cid:190) in the case of aerobuses, by airport personnel
specially trained for this kind of driving,

(cid:190) in the case of conventional buses, by a subcon-

tractor selected by invitation to tender.

(19) However,

the two types are regulated from the
same dispatching room, all the buses having to be
coordinated.from there because of the lack of avail-
ability at boarding or disembarking door level at
certain times of the day.

(20)

Since 1 January 1999 A(cid:130)roports de Paris (ADP) has
withdrawn from the passenger transport market at
both Orly and CDG airports with the exception of
CDG 2, which is the subject of the exemption. And
as regards CDG 2, ADP also plans to cease being a
service provider as from the end of the scheduled
exemption period.

(21) Apart from the extreme difficulty in obtaining new
reduction in the
aerobuses and the imminent
market because of a major improvement in the
proportion of gate parking positions, the dossier
presented by the French authorities focuses on the
problems of vehicle parking space, boarding and
disembarking capacity and apron saturation.

A.2. Parking of equipment

(22) According to the French authorities

the only
parking area at present, covering 1 054 m2,
is
around the aerobes workshop. This is in the centre
of the north of the terminal and obliges vehicles to
cross the aircraft taxiways. In addition, being away
from the central control of operations and from the
drivers’ zoom in hall A, it can only really be used
for long-stay parking (overnight) and not for short
stay.

(23)

This area allows for theoretical parking, i.e. just the
floor space used by the equipment, of 30 buses and
two aerobuses being serviced in the workshop.

(24) Other vehicles, i.e. the aerobuses in operation and
17 ordinary buses, are parked on the apron and
service roads alongside halls A, B and occasionally
D under conditions which sometimes border on
being unsafe.

L 124/18

EN

Official Journal of the European Communities

18. 5. 1999

(25) Given the ground coverage of the aerobuses (77 m2)
and the ordinary buses (30 m2) and the minimum
area needed for manoeuvring, put at 2 m for
aerobuses and 1 m for conventional buses, making
for a dynamic area of 137 m2 and 42 m2 respec-
tively,
for parking
vehicles is put at 4 303 m2 at the CDG 2 terminal.

the total area requirement

(26)

in parking space,

The current shortfall
for the
remaining 17 buses and 15 aerobuses, is estimated
at 1 665 m2 in static area; or 2 769 m2 in dynamic
area, given the minimum manoeuvring require-
ments. In view of the distance from the workshop
area, which only allows long-stay parking,
the
airport
the operational
parking space needed under guaranteed safety
conditions is over 4 000 m2

the opinion that

is of

A.3. Boarding and disembarking capacity

(27)

Boarding and disembarking operations at
terminal are performed:

the

(cid:190) in the case of aerobuses:

by double doors at the fingers on level +1
thanks to the elevation system of the aerobuses,

(cid:190) in the case of buses:

(cid:190) either by specialised lounges at level 0, one

per hall,

(cid:190) or at the foot of the stairs of the fingers,
although this system compromises both the
quality of
the service to passengers and
safety on the apron.

(28)

In particular, hall C is only equipped for aerobuses
as far as boarding is concerned, which ntles out
conventional buses.

(29)

Since whether aerobuses or conventional buses are
used depends largely on the type of aircraft being
handled and the time at which it has to be handled,
the frequent changes of aircraft positions mean that
bus or aerobus allocation have to be fully coordi-
nated centrally as long as the two types continue to
operate side by side. This coordination is central-
ised in order to make for optimum use of available

(30)

(31)

capacity at any time at the terminal and at the
air-side positions.

A.4. Saturation of aprons

The dossier presented by the French authorities
that, given the areas available and the
shows
vehicles involved expressed in traffic units,
the
passenger transport vehicles have 1,6 times more
room to move around and park at CDG 1 than at
CDG 2. This is due to the area available, the types
of vehicle (no aerobuses but conventional buses and
articulated buses at CDG 1 (1) and lesser vehicle
the high
requirements at CDG 1 because of
that
proportion of gate parking positions
terminal.

at

Similarly, the ratio between the service road areas (2)
shows that conditions are worse at CDG 2 than at
CDG 1 (1,1 times more congestion at CDG 2), even
if identical air-side equipment density is used for
the comparison between the two terminals, which
is not the case because the better rate of apron
contact at CDG 1 makes for a saving on certain
air-side equipment:

(32) According to the report presented development of
parking areas is prevented to the north by the
crossing of the taxiways and the periphery of the
controlled area, and to the south by the taxiways
and runways.

(33)

To the west the problem is similar to the hall A
satellite. Development to the east seems to be the
only possible solution, but the construction area
around halls F and E will mean parking outside
that area (Grand Large zone). However, a parking
area in this part of the airport could only be used
for buses on standby
for parking at night or
because the distance from the dispatching rooms
and the rest areas, which would mean transporting
the drivers by car, would make it impossible for
buses to be available as required.

(34)

indicates

The report
that at present, parking
vehicles alongside the terminals or aircraft parking
positions is not even satisfactory with a single oper-
ator, involving, as it does, problems not only of

(1) Taking a transport unit as a ratio of the floor coverage of the

vehicles gives the following weighting scale:
conventional bus: 30 m2 = 1 TU, articulated bus: 63 m2 =
2,1 TU, aerobus: 77 m2 = 2,56 TU.
The parking area at CDG 1 amounts to 0 TU in that all the
buses at CDG 1 and T 9 are parked at T 9; the parking area
at CDG 2 amounts to 90,5 TU (2,56 · 15)
Apron area:
(cid:190) CDG1: 376 100 m2, CDG2: 674 800 m2
(cid:190) CDG2: 674 800 m2

90,5 TU

CDG1: 376 170 m2

31 TU

(2) Service road area:

= 7 456 m2/TU;

= 12 134 m2/TU.

(cid:190) CDG1: 52 000 m2, CDG2: 134 000 m2,
(cid:190) CDG2: 134 000 m2

= 1 480 m2/TU;

90,5 TU
CDG1: 52 000 m2

31 TU

= 1 677 m2/TU.

18. 5. 1999

EN

Official Journal of the European Communities

L 124/19

parking equipment at the apron positions but also
moving in that area, especially at Air France’s hub
peaks. Opening the groundhandling market up to
other air-side operations only reduces the space
available in that area and makes the problem worse.
According to the report the arrival of other opera-
tors providing passenger transport services is not
therefore possible at the moment.

(35) According to the dossier increasing the parking
areas cannot
therefore be extended beyond the
work zone of hall F. The current carpark around
the workshop can only be increased in the reserved
area and parking CDG 2 vehicles in the areas of
CDG 1 and T 9 is not feasible because of the
distances.

B. T 9 Terminal

(36)

The T 9 terminal, which is to the east of CDG 1
and to the north of
the business park, was
completed in 1991 to cope with the increase in
charter traffic. It met the pressing need to handle
peak summer traffic that the provisional installa-
tions at Orly and the new amenities there could
not cope with.

(37)

The T 9 terminal has the peculiarities:

(cid:190) of not being comparable in terms of size with
CDG 1 and CDG 2, which handled 9,7 and
24,1 million passengers respectively in 1997,
whereas only 1,5 million passed through T 9,

(cid:190) of handling only charter flights, which means
handling one third of the annual traffic just in
the months of July and August and half the
weekly traffic volume at the weekends,

(cid:190) of only having, until recently, a light structure
in part (office container), making it not as suit-
able as the other terminals.

(38)

For some years now crew administration (points 1
and 9), marshalling on departure (point 5.3),
catering (point 11) and loading on board (point 5.7),
cleaning (point 6),
fuel handling (point 7) and
aircraft maintenance (point 8) have been carried out
by several service providers. Similarly, one airline
already self handles for the ramp handling opera-
tions covered by the exemption (point 5) and for
fuel handling. Finally, since 1 January all opera-
tions, except for those affected by the exemption,

are open to competition pursuant to the provisions
of the Directive and the French regulation trans-
posing it.

The report submitted by the French authorities
shows that space has been becoming tighter for a
number of years now in this terminal because of
the significant rise in charter traffic at the airport.
This has led to rapid saturation of infrastructure,
making it difficult to handle passengers properly.
The creation of extra space to increase the termi-
nal’s
capacity would also mean new space
constraints while work was being done.

It is these temporary constraints for the duration of
the work in progress which are the basis for the
exemption concerning terminal T 9 for passenger
handling (point 2 of the Annex to the Directive),
baggage handling (point 3) and ramp handling
(point 5 with the exception of point 5.3 concerning
communication between aircraft and supplier).

B.1. Saturation of existing installations

Terminal T 9, with its simple design and spacious
waiting areas to meet the demands of charter traffic
(groups, long waits to board, numerous accompa-
nying persons), has found it dificult to cope with
the remarkable growth in non-scheduled traffic at
the Paris airports, from 3,5 million passengers in
1990 to 4,2 million in 1996, which has meant that
more than 55 000 overflow passengers have had to
be passed on to other terminals.

It appears from the dossier presented that
the
problem arises essentially from the concentration
of traffic over the summer months. The peak traffic
forecasts, based on the 25th summer peak hour,
indicate complete saturation of installations. This
gives rise to numerous incidents in the summer,
especially at the weekends because of the impossi-
bility of handling all passengers at certain times.

The airport authorities have decided to expand the
terminal in order to cope with this traffic. Initial
work began in 1997 and an additional hall was
opened at the end of April 1998, notably to cope
with the extra traffic brought on by the World Cup.
This is being followed by a second stage of work

(39)

(40)

(41)

(42)

(43)

L 124/20

EN

Official Journal of the European Communities

18. 5. 1999

designed to increase the space available to take
account of the effects of the Directive. The situa-
tion has also been improved temporarily by the
transfer of Star Airlines to CDG 1.

additional operator during the work period, which
should be for the whole of 1999.

(44)

Since April 1998 the old terminal has thus been
converted into a departure hall, the new hall being
used only for arrivals. In the departure hall 14
check-in desks have been added to the inter-
national area with its 20 check-in counters (plus
two outsize ones). These check-in desks should also
help to handle Schengen traffic which has been
growing regularly for
few years. This
growth means that the airport has to create specific
installations, particularly at boarding level, in order
to guarantee the quality of passenger handling.

the past

(45)

The lack of space has also meant that the airport
has had to use
(office
temporary
containers) covering almost 800 m2 (of which 700
m2 air-side) to house more than 46 % of require-
ments in terms of offices, hall rest areas, adminis-
trative premises and bus dispatching centre for the
transport of passengers to the aircraft.

structures

(46)

The area shortfall in premises is currently put by
the airport authorities at 1 600 m2.

(47) With the work carried out so far the areas available
are now 600 m2 in the terminal (of which 500 m2
for groundhandling) and 700 m2
for
groundhandling) air-side.

(600 m2

(48)

The new facilities have thus provided, in an initial
phase now completed, the resources needed for
handling traffic by way of check-in desks, baggage
conveyors and departure lounges. The second
phase of the work, i.e. the period of the exemption,
is
intended to provide the space needed for
suppliers and users to self handle.

(49) As regards baggage handling, terminal T 9 has had
a 100 % hold luggage control system since June
1997. The work to extend the control system to all
departure facilities since the rearrangement of the
terminal, especially on the south side behind the
14 new check-in desks, requires some of the space
along the south side of the departure hall to be
condoned off, making for constraints in both space
and movement in this area and, according to the
French authorities, not permitting the arrival of an

III. REACTIONS OF THE INTERESTED PARTIES

(50)

Following the publication of the r(cid:130)sum(cid:130) of the
notification of the application for exemption by the
French authorities, the Commission has received
no comments from any interested parties.

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

1. The rules in force concerning groundhan-

dling

1.1. The scope for restricting access to the market

(51) Directive 96/67/EC provides for

the structured
opening-up of the market as a function of the
manner in which groundhandling operations are
provided (self-handling or services to third parties)
and the volume of traffic at the airport.

(52)

The general rules for self-handling and the provi-
sion of services to third parties as set out in the
notification from the French authorities are laid
down by Articles 6 and 7 of the Directive. These
rules are included in Article 1 of
the French
Decree of 5 January 1998 amending the French
Civil Aviation Code and transposing the Directive.
According to the Directive a Member State may
limit
self
handling for certain categories of services listed in
points 3, 4, 5 and 7 of the Annex to the Directive
to a minimum of two.

suppliers and users

the number of

(53) However, where

or

space

specific

capacity
constraints, in particular because of the rate of use
or congestion of space, make it impossible to admit
a new supplier and/or to authorise self handling to
the degree provided for by the Directive,
the
Member State in question may, in accordance with
Article 9 and the particular categories concerned,
restrict or even reserve the provision of services to
third parties for a single operator and/or ban or
limit self handling to a single user.

18. 5. 1999

EN

Official Journal of the European Communities

L 124/21

(54) Nevertheless, under Article 9(2) an exemption of

1.2. Procedure

this kind must:

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

available

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

ures to overcome these constraints.

(55) Also, under Article 9(2), the exemption must not:

(cid:190) unduly prejudice the aims of the Directive,

(cid:190) give rise to distortions of competition,

(cid:190) extend further than necessary.

(56) As the Commission pointed out in its Decision of
14 January 1998 concerning the airports of Frank-
furt and D(cid:129)sseldorf (1), the main purpose of the
Directive is to liberalise groundhandling services.
Limitations imposed on third parties amount to
restrictions to those parties’ freedom to provide
services. By way of analogy with State measures
restricting the freedom to provide services (2),
measures which are liable to exclude or prohibit
the activities of a provider of services or users
wishing to self-handle, even if they apply without
distinction to national providers of services and to
those of other Member States, must ‘be such as to
guarantee the achievement of the intended aim and
must not go beyond that which is necessary in
order to achieve that objective. In other words, it
must not be possible to obtain the same result by
less
the judg-
ment) (3).

restrictive rules'

(ground 15 of

(57)

It is in the light of the principles of necessity and
proportionality that it has to be examined whether
the national provision in question (Decree of 22
December 1998 restricting access to the market of
groundhandling for the airport of Roissy-Charles
de Gaulle) contains restrictions on freedom to
provide services and, if so, whether those restric-
tions are justified by overriding reasons relating to
the public interest (4).

(1) Commission Decisions 98/387/EC and 98/388/EC (OJ L 173,

18.6.1998, pp. 32 and 45).

(2) Judgments of 25 July 1991, Case C-288/89, Mediawet-Collec-
[1991] ECR I-4007 and

tieve Antenne voorziening Gouda,
Case C-76/90, Sager v. Dennemeyer [1991] ECR I-4221.
(3) See in particular the judgment of 25 July 1991, Case C-288/
[1991]

89, Mediawet-Collectieve Antenne voorziening Gouda,
ECR I-4007, grounds 10 to 16.

(4) Commission interpretative communication conecrning the fret
movement of services across frontiers (OJ C 334, 9.12.1993,
point III.2).

(58) As recalled in the various decisions (5) on the
the

application of Article 9 of
the Directive,
Commission must base its examination on:

(cid:190) the existence and extent of

the space and
capacity constraints used to justify the exemp-
tion and the impossibility of opening up the
in the
market
to the degree provided for
Directive; only the
capacity
constraints can be taken into account,

and/or

space

(cid:190) the plan of appropriate measures to overcome
the constraints; this plan must be credible and
unconditional and have a timetable for the
implementation of those measures,

(cid:190) conformity with the principles

referred to
Article 9(2) concerning compliance with the
objectives of
the Directive, no distortion of
competition and extent of the measure.

The granting of an exemption is not meant to
grant the airport a further general adaptation period
in addition to that already granted by Article 1 of
the Directive. It must allow the airport to overcome
the specific constraints that it may encounter when
the market is opened up. Any exemption must
therefore be examined in the light of the specific
constraints invoked to justify the impossibility of
opening up the market within the time permitted.
Moreover, according to the case-law of the Court,
any exemption must be interpreted strictly and the
scope of an exemption must be determined in the
light of the aims of the measure in question (6). It
is in the light of these considerations that this
exemption has to be examined.

In accordance with Article 9(4) of the Directive, the
Commission has made a detailed analysis of the
alleged space and capacity constraints, has consid-
ered whether the decision taken by the French
authorities is appropriate to those constraints, and
has appraised the measures put forward to over-
come them. It has based its examination on the
dossier presented by the French authorities, on the
visit it made to Roissy-Charles de Gaulle Airport
following the notification by the French authorities
and on the report drawn up on its behalf by the

(59)

(60)

(5) Commission Decisions 98/387/EC and 98/388/EC (OJ L 173,
18.6.1998) concerning the airports of Frankfurt and D(cid:129)ssel-
dorf;
Commission Decisions 98/630/EC, 98/631/EC and 98/632/EC
(OJ L 300, 11.11.1998, pp. 25, 33 and 41) concerning the
airports of Cologne, Stuttgart and Hamburg.

(6) See judgments of 20 April 1998 in Joined Cases 80 and 81/
77 [1978] ECR 927, p. 945, and of 25 June 1992 in Case
C-116/91, British Gas [1992] ECR I-4071, ground 12.

L 124/22

EN

Official Journal of the European Communities

18. 5. 1999

company Aerotec Ground Handling & Manage-
ment Consultants. The conclusions of this report,
entitled ‘Access to aircraft groundhandling market
at Community airports (cid:190) Paris
(CDG)', were
submitted to the Commission in March 1999. The
Commission also took account of the comments
made by ADP and the French authorities with
regard to this appraisal, which were communicated
by the French authorities on 19, 25 and 26 March
1999.

(65)

2. Constraints

referred to by the French

authorities

(61)

The exemption concerns different categories of
services in two separate terminals which are not
comparable either in situation, size or type of
traffic. Each of the situations must therefore be
presented and examined separately.

performed by conventional buses are at 18 depar-
ture gates. ADP uses five dedicated arrival lounges.

That said, boarding and disembarking by conven-
tional buses is not a full option in hall C. As
already said (point 28), only aerobuses can be used
for boarding in hall C. Since it only has fingers, the
hall does not have the doors and stairs for boarding
by conventional buses. The configuration of this
hall is such that it is impossible to use normal
buses to transport passengers between the terminal
and the aircraft, thus making aerobuses the only
possibility, although disembarking by normal bus
at level 0 to the arrivals lounge is possible. This is
thus
constraint which
capacity
prevents the arrival of a service-provider or self
the hall/
handler before the configuration of
terminal is changed to enable the use of any type
of bus for passenger transport.

significant

a

(62) However,

the French authorities point out

in
general that the capacity and space at the airport as
a whole must not hide problems of space for
parking specific groundhandling equipment at
certain specific points in the airport. This equip-
ment has to be parked close to where it is used.

(63) Wherever possible

for

groundhandling
space
equipment should ideally be close to the aircraft,
i.e. near the terminals. However, this is only as a
matter of priority. The Directive provides that the
authorities of the Member State must demonstrate
that it is impossible to open up the market to the
degree required. The Member State must therefore
show that there is insufficient space to park the
equipment and carry out the intended operations
without specifically setting quality criteria for each
of the positions so as not to affect the proper
functioning of the airport.

CDG 2

(64)

The visit by the Commission and the report drawn
up on its behalf confirm that the terminal CDG 2
uses two types of passenger transport operations:
transport by aerobus (mobile lounge) and transport
by conventional and articulated buses. In principle
the two types of transport can be interchanged
from an operational
already
mentioned, the three types of bus differ in terms of
design and energy supply requirements (aerobus:
electricity). However, not all of the arrival areas
(fingers) allow aerobuses and conventional buses to
be used at the same time. At present aerobuses can
perform departure anal arrival operations on 23
fingers whereas the departure operations (only)

viewpoint. As

(66) As regards the other halls at CDG 2, the Commis-
sion, while recognising that there are significant
peak periods at the terminal, nevertheless feels that
the French authorities have not demonstrated that
all of the space available was in use. On the one
hand, they claim that the space available (1 054 m2)
only covers part of the overall needs (4 303 m2). On
the other, they say that in 1999 already they will be
phasing out eight of the aerobuses and adding 27
conventional buses to the 47 existing ones. Phasing
out eight aerobuses will mean a gain in dynamic
area of 1 096 m2 = (8 · 137 m2) whereas the extra
conventional buses will mean additional require-
ments of dynamic area of 1 134 m2 (27 · 42 m2).
However, the French authorities have not shown
how they plan to park (long and/or short stay) the
extra buses.

(67)

The French authorities maintain that because of
the Air-France hub operations at this terminal and
because of
the reduction in the number of
aerobuses, extra conventional buses are needed and
that this requires centralised coordination to guar-
antee the flexibility (change of operating plans at
the service
the last minute) and the quality of
provided. It also claims that the arrival of another
service provider would not permit
this kind of
coordination. While recognising that coordination
may be necessary for more efficient operations,
especially in the case of delays and/or any last-
minute changes of plan, it is up to the airport to
provide proper management of bus services to
avoid any operational disturbances on the aprons.
Management of this kind is in place in airports
allready open to competition as a result of the
regular administration and supervision rights of the

18. 5. 1999

EN

Official Journal of the European Communities

L 124/23

airport, which may impose rules on all operators
working there in order to make for a fully func-
tional system. The French authorities have not
shown that the presence of a single operator in hall
C would not make for a fully operational system
throughout the terminal and that coordination of
that kind could not be achieved if the groundhan-
dling market were made open in the other halls of
the terminal.

buses only need to be parked during the period
when they are not in use. These buses could be
parked, for example, to the east of the current
building area, on the sites of. the future halls F 3,
E 3, F 4 and E 4 which will not be put into service
until between 2005 and 2010.

another

supplier

arrival of

The
and/or user
applying self handling would not affect the termi-
nal’s traffic handling capacity. At present there are
23 fingers (piers) and only 14 aerobuses that can be
used at any one time. The argument put forward
only stresses the commercial consequences that the
arrival of a new service provider or self handler
would have on ADP. There is no mention of
congested areas
(fingers and remote positions)
which might cause serious operational disturbances
and jeopardise the terminal’s
traffic handling
capacity. According to the dossier 18 of the gates
can be used only for boarding, arrivals being chan-
nelled via five others. The fingers cannot be used at
the same time by aerobuses and conventional
buses. Even if a supplier and/or user were to handle
20 % of the terminal’s traffic (double the market
the increase in the
share estimated by ADP)
number of conventional buses would not have
serious consequences either for space or operations.
ADP had in fact planned to increase the bus fleet
from 47 to 74 in 1999 (an increase of 57 %) and to
phase out some of the aerobuses (there will only be
nine at the end of 1999). ADP does not feel that it
will be impossible to park these extra buses.

It has not therefore been shown that, in halls A, B,
D and F, the extra number of conventional buses
cannot be operated by another service provider or
self-handler.

(68)

The French authorities also claim that any self
handler or other provider of passenger transport
services would only use the conventional buses and
not the aerobuses, since the latter are no longer in
production, which would have serious conse-
quences for ADP (higher maintenance costs for the
aerobuses). This argument cannot be accepted:
firstly, because it does not explain either the lack of
parking capacity or show an inextricable link with
the aprons and service roads;
the saturation of
secondly, because this point does not
affect
handling capacity in terms of passengers. As
already said, Article 9 has to be interpreted strictly
and account taken of the purpose of the measure in
question. The purpose of the Directive means that
only the constraints mentioned in Article 9, which
are in themselves barriers to the application of the
Directive, can serve as a basis for an exemption.
The impossibility of opening up the market must
be due to a fact independent of the party invoking
that impossibility. According to ADP, however, it is
not just the lack of space as such that makes it
impossible for the arrival of a new operator at CDG
2 but also the fact that the arrival of this new
operator would increase the maintenance costs of
the aerobuses.

T 9

(69)

The visit by the Commission and the report drawn
up at its request confirm that the buses (aerobuses
and conventional) do not necessarily have to be
parked near the terminal that they service. At many
airports, such as Heathrow, buses use the long-stay
parking areas around the perimeter of the airport
and ate used according to the needs of users and/or
suppliers. If this capacity is put to effective use

(70)

The visit by the Commission and the report drawn
up on its behalf confirmed the reality of
the
constraints and the validity of the points made by
concerning passenger
the French authorities

L 124/24

EN

Official Journal of the European Communities

18. 5. 1999

ticket
handling in the terminal,
control, travel documents, registering baggage and
carrying it to the sorting area (category 2).

in particular

(71) As far as baggage sorting is concerned, and trans-
port of the baggage between the aircraft and the
terminal,
the Commission noted in its various
Decisions (1) that, generally speaking, the number
of trolleys needed for the baggage sorting system
depended on the number of flights to be handled
and not the number of operators within the system.
However, in some cases the very configuration of
the baggage-sorting hall prevents any crossing of
vehicles in the hall. As in the case of Stuttgart
airport, the fact that the hall is small and at times
congested is indisputable. Because of the tightness
along the baggage-conveyance system and the
single door which obliges operators to make a U-
turn it is not possible to admit more than one
vehicle into the hall at any one time. The airport
therefore has to regulate trolley management in the
hall, the other trolleys having to be kept on hold
near the door (2). In the particular case of the T 9
terminal the baggage sorting hall has been placed
between the departure lounge with its passenger
thus making it
rest area and the arrivals hall,
impossible to park the extra baggage-transport
equipment near the hall. The area currently set
aside for storage of the baggage-transport equip-
ment for the whole terminal is 2 500 m2 and is
at present. A second service
completely full
provider would need a minimum additional area of
500 m2 The work in progress on two of three sides
of the hall air-side in order to make the terminal
bigger will reduce available space by some 700 m2
and will thus amount to a further constraint and,
for the period in question, prevent the parking of
equipment belonging to a second operator in the
area around the terminal.

(72)

Space and capacity constraints thus exist which
justify the decision of the French authorities to
reserve the provision of services to third parties for
a single operator and to prohibit self handling for
baggage sorting and transport between terminal
and aircraft (point 3 and part of point 5.4 of the
Annex to the Directive).

(1) See Commission Decisions concerning the airports of Frank-

furt, Stuttgart and Cologne/Bonn.

(2) See, in particular, the Decision concerning Stuttgart airport.

(73) As regards the other air-side operations referred to
by the exemption, it is generally acknowledged that
the presence of several operators calls for more
equipment than is needed for a single supplier and
also more space to park that equipment. While
equipment needs in the case of a single provider
depend on the volume of traffic during the peak
periods of
in a system open to
competition account has to be taken of the peak
periods of each of the operators, which do not
necessarily coincide with those of the airport. A
competitive situation would therefore mean more
equipment required and more space needed to
park it.

the terminal,

However, during calmer periods, especially at night
when the equipment is used to a lesser degree, the
free positions at the airport can in principle act as
temporary parking areas for equipment. Account
also needs to be taken of the fact that the advent of
competition will
lower the market share of the
operator currently in a position of sole supplier and
thus
and
parking space.

also lower equipment

requirements

(74) At present

the terminal apron has 14 aircraft
requiring pushing operations
parking positions,
(TIPO (cid:190) taxi
in push-out (cid:190) positions). The
parking positions are MARS (mufti-aircraft remote
stands) positions allowing simultaneous parking of
8 to 14 aircraft depending on their size/type and
the configuration of the apron. Parking is always
nose-in. ADP takes the view that a new operator
with a market share of around 10 % would be able
to handle 2 000 movements a year. However, the
figures submitted by ADP show that in 1998 there
were 13 900 movements at that terminal, i.e. 10 %
amounts to a maximum of 1 400 movements. ADP
reckons that a new operator could handle three
aircraft at the same time; the equipment for an
operation of this kind would take up about 1 000
m2. However, only 600 m2 is needed to park equip-
ment which has to be used right next
to the
aircraft. During peak periods 10 aircraft movements
can be handled per hour. Making more efficient
use of the available space around the noses of the
aircraft could save space of around 1 800 m2. The

18. 5. 1999

EN

Official Journal of the European Communities

L 124/25

standards and practices recommended by the Inter-
national Civil Aviation Organisation (ICAO)
lay
down the space and areas that have to be reserved
for safety purposes and for equipment on aircraft
the type of aircraft.
positions as a function of
Inspection of the installations showed that there
was still plenty of space left to park groundhan-
dling equipment around the noses of the aircraft.
Also, during peak periods most of the groundhan-
dling equipment is in use and therefore does not
need to be parked.

(75)

for

The French authorities claim that during peak
periods personnel and equipment from CDG 1 are
used in T 9 to handle extra traffic. ADP’s argument
that air-side operations prevent any parking of
extra equipment
safety reasons cannot be
accepted because this kind of situation is common
in many international airports and does not present
any particular problems. A clear demarcation of
positions along with supervision to ensure that the
aircraft position provides all the safety guarantees
on arrival of the aircraft (which is a normal safety
procedure in many airports with nose-in positions)
will solve this problem.

(76) At present ADP uses office containers to provide a
total area of 800 m2 of offices, administrative units
and rest areas, i.e, more than 46 % of the office
space. It is accepted that during work phases there
is no extra space to house the offices and adminis-
trative units of a new operator. However, stacking
up two office container systems, as has already been
done on other building sites, including at airports,
would provide premises both for ADP and another
operator. In addition, these installations only need
to be at a reasonable distance from operations in
order to show access to the terminal in time to
provide the services concerned.

(77)

The French authorities have not therefore demon-
strated that it is impossible to accept the arrival of a
second service provider for the air-side operations
in question (except for baggage sorting and trans-
port between the aircraft and the terminal) as long
as this second operator accepts being subjected to
the parking and housing constraints described
above.

CDG 2 terminal

(79)

(80)

The schedule presented sets out to make a marked
improvement in the proportion of gate parking
positions at CDG 2,
in particular through the
construction of the new F and E halls to handle the
Air-France hub, Air-France being the main gener-
ator of traffic peaks at CDG 2. The proportion of
gate parking positions after the work planned is
completed is put at 90 and 100 %, thereby making
for a considerable reduction in vehicle require-
ments and hence parking space. Space will also be
freed up as the work sites at CDG 2 disappear. In
addition, the aerobuses will be gradually phased
out: phasing-out of aerobuses in 1999 for halls B
and D, making for a reduction in the number of
aerobuses for the 15 at present to nine by the end
of 1999 and an increase in the number of normal
buses from 47 at present to 74 by the end of 1999;
in 2000 phasing-out of all aerobuses and stabilisa-
tion. of the number of conventional buses at 49.

The French authorities are planning major work on
hall C (cost: EUR 1,5 million) to overcome the
constraints cited. They plan to (i) create a covered
stairway to handle departures in C 2 to C 12, (ii)
install an escalator and a lift to the transfer hall and
then to the arrivals filters at C 0 to C 10, and (iii)
convert the aerobus disembarkation door on the
west of the arrivals hall. By the end of the period in
question this work will make for boarding and
disembarking by conventional buses and will elimi-
nate the capacity constraint.

Consequently, the planned measures submitted by
the French authorities can be considered as suitable
for overcoming the constraints identified in tbis
hall.

(81) As

regards halls A, B, D and F,

since the
constraints indicated by the French authorities
have not been established the measures put forward
to overcome such constraints need to be examined
in more detail.

3. Measures planned

T 9 terminal

(78) Article 9(2) of

the Directive provides that

the
exemption must be accompanied by a schedule of
appropriate measures that are intended to over-
come the constraints cited.

(82) After the first phase of work, which was completed
on 25 May 1998 and solved the problem of
resources to cope with traffic through the creation
of a new departure hall and 14 extra check-in
desks, the second phase will comprise:

L 124/26

EN

Official Journal of the European Communities

18. 5. 1999

(cid:190) installation of a baggage control system south-

side,

(cid:190) the creation of

the additional

infrastructure

needed for groundhandling operations.

to improve the
opening-up which also helps
services on offer and the prices paid by users will
help to achieve the objectives of the Directive by
introducing competition between service providers.

(83)

The measures planned are as follows:

(cid:190) In the departure hall:

(cid:190) rearrangement of the public area to avoid

passenger flows crossing,

(cid:190) creation of an additional 30 m2 waiting area,

(cid:190) creation of around 500 m2 of office space,

(cid:190) in the arrivals hall:

(cid:190) possibility of doubling the baggage sorting

area,

(cid:190) outside:

(cid:190) construction of an air-side building with an

area of around 2 000 m2,

(cid:190) possibility of 50 % more space in storage

area.

(84)

This work should help to meet space requirements
(administrative offices/operations
the
order of 1 400 m2, especially in the view of the
need to re-house the office containers and meet
pending requirements as well as new requirements
due to the application of the regulation on ground-
handling.

rooms) of

the

show that

(85) A first reorganisation of resources (passenger traffic)
which did not create extra ‘exclusive' space, was
completed in May 1998. The plans submitted by
the French authorities
space
currently dedicated to land and air-side activities of
1 300 m2 (of which 1 100 m2 for groundhandling
services) will increase to 2 700 m2 (of which 2 100
m2 for groundhandling) in April 2000. The space
created will be for users (airlines, groundhandling
suppliers, etc.). Consequently, the planned meas-
ures presented by the French authorities can be
regarded as
the
appropriate
constraints identified at that terminal.

for overcoming

In

instance

reviewed.

(87) As regards the extent of the measures, since only
the constraints concerning hall C in terminal CDG
2 have been established it is only in respect of this
hall that the proportionality of the measure should
be
immediate
this
opening-up of the market would not amount to
real access being a possibility. The work planned
by the French authorities is indispensable for the
departure areas to be converted to enable passenger
boarding by conventional buses. In view of the
current situation in this hall the Commission takes
the view that the measures taken do not extend
the available
further
capacity does not allow immediate opening-up of
the market in this hall to the degree provided for
by the Directive.

than necessary and that

As regards the other halls in this terminal, however,
the constraints cited by the French authorities have
not been established and thus there is no need to
make a more detailed examination of the propor-
tionality of the measures put forward to overcome
these constraints.

(88) As far as terminal T 9 is concerned, the exemption
granted by the French authorities seems to extend
further than necessary in that it involves air-side
activities, notably marshalling of aircraft, assistance
to aircraft parking, loading and unloading, engine
stetting and moving the aircraft, which are not
necessarily linked either to the passenger-handling
service or to the baggage handling service in the
sorting area and the transport of baggage between
the aircraft and the terminal, and for which space
constraints have been established.

V. CONCLUSION

4. Compliance with the criteria laid down in

Article 9(2) of the Directive

(89)

(86) As regard the objectives of the Directive, the title of
it is enough to explain that the main objective is
access to the market. However, its purpose is that
this access should be real, i.e. that ‘the opening-up
of access to the groundhandling market should
help to reduce the operating costs of airline compa-
nies and improve the quality of service provided to
airport users' (fifth recital of the Directive). Thus,

The CDG 2 terminal does net present any struc-
tural space and capacity problems which prevent
the groundhandling market
the opening-up of
concerning the transport of passengers. The French
authorities have not cited specific space and
capacity constraints
is
completely impossible to open up the market for
this service. None the less, the configuration of hall
C justifies reserving the provision of this service
solely for the airport in this hall for the period in
question.

to demonstrate that

it

18. 5. 1999

EN

Official Journal of the European Communities

L 124/27

(90)

prevent

capacity

The T 9 terminal has only partly structural space
and
the
problems which
opening-up of the groundhandling market to the
degree provided for by the Directive. The space
available and the work in progress to enlarge and
improve traffic handling at this terminal do not
allow for more than two self handlers and two
providers of services to third parties for passenger
handling. By the same token, the space available
for baggage sorting and transport of baggage
between the terminal and the aircraft does not
allow for a second provider of services to third
parties. However,
it has not been sufficiently
demonstrated that ADP should continue to be the
sole provider of groundhandling services for the
remaining air-side activities since the lack of space
and capacity does not affect the provision of these
services,

HAS ADOPTED THIS DECISION:

Article 1

The exemption decision granted to Paris-Roissy-Charles
de Gaulle airport, as notified to the Commission on 8 and
27 January 1999, is approved subject to the following
amendments being made by the French Republic:
(cid:190) as regards the provision of air-side services to third
the
parties concerning marshalling (point 5.1 of
Annex), parking (point 5.2 of the Annex), loading and

unloading (part of point 5.4 of the Annex), engine
starting (point 5.5 of the Annex) and moving of the
aircraft (point 5.6 of the Annex) at terminal T 9, the
decision taken on the basis of Article 9 (1) (b) must
permit the opening-up of the market to a second
provider of services to third parties,

(cid:190) as regards the provision of services to third parties and
self-handling in. passenger transport at CDG 2, the
decision taken on the basis of Article 9(1)(b) and (d)
shall be revoked for halls A, B, D and F.

Article 2

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

Article 3

This Decision is addressed to the French Republic.

Done at Brussels, 27 April 1999.

For the Commission

Neil KINNOCK

Member of the Commission