99/316/EC: Commission Decision of 27 April 1999 on the application of Article 9 of Council Directive 96/67/EC to Berlin Tegel Airport (Berliner Flughafen GmbH) (notified under document number C(1999) 1066) (Only the German text is authentic) (Text with EEA relevance)
Date: 1999-04-27
Institutions: European Commission
Subjects: Berlin, airport, provision of services, transport infrastructure

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L 121/21

COMMISSION DECISION

of 27 April 1999

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

(notified under document number C(1999) 1066)

(Only the German text is authentic)

(Text with EEA relevance)

(1999/316/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(2)

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 26 January 1999 and after
consulting those authorities,

the Directive,

to Article 9(3) of

Pursuant
the
Commission published an extract from the said
notification in the Official Journal of the Euro-
pean Communities (2) and invited interested parties
to submit comments.

(3)

In accordance with Article 9(5) of the Directive, the
Commission consulted the German Government
on its draft evaluation on 22 and 24 March 1999.

After consulting the Advisory Committee,

Basis of the exemption

Whereas:

(4)

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

1. Notification by the German authorities

(1)

By letter of 28 January 1999, which the Commis-
sion received on 29 January, the German authori-
ties requested approval of
the
Government of the Federal Republic of Germany
of 23 July 1999 to grant to Berlin Tegel airport
(Berliner Flughafen GmbH) an exemption to:

the decision of

(cid:190) ban self handling, and

for

(cid:190) reserve for Berlin Tegel Airport

the categories of

(Berliner
Flughafen GmbH) the provision of services to
third parties,
services
referred to in points 3, 4 (with regard to the
physical handling of freight and mail, whether
incoming,
transferred,
or
between the air terminal and the aircraft), 5.4
and 5.6 of the Annex to the Directive.

outgoing

being

This exemption is to be granted, on the basis of
Article 9(1)(b) and (d) of the Directive, until 31
December 2000.

The general rules for access to the groundhandling
services market are set out in Articles 6 and 7 of
the Directive. They 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
Berlin Tegel the Directive provides for the right to
self-handle from l January 1998 and opens up the
market for services to third parties from l January
1999. However, in order to take into account the
specific situation and role of an airport, and in
particular the safety, security, space and capacity
constraints which can arise in certain parts of most
airports, the Directive does not impose complete
liberalisation for four categories of services located
air-side, i.e. in a particularly sensitive area of the
airport, but does require a minimum degree of
liberalisation of both self handling and the supply
of
categories
to third parties. The
concerned are ramp handling, baggage handling,
fuel handling and certain freight and mail handling
operations.

services

(5)

Article 9 of Council Directive 96/67/EC also takes
account of the fact that,
in certain very special
cases, severe space and capacity constraints prevent
the opening-up of
to the degree
provided for. In such cases, exemptions may be
granted on a temporary basis to give the airports

the market

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

(2) OJ C 64, 6.3.1999, pp. 9-11.

(6)

(7)

(8)

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Official Journal of the European Communities

11. 5. 1999

time to overcome the constraints. These exemp-
tions 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.

(9)

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 abovementioned exemption in accord-
ance with Article 3 of the German ‘Verordnung
(cid:129)ber Bodenabfertigungsdienste auf Flugpl(cid:132)tzen und
zur (cid:142)nderung weiterer luftrechtlicher Vorschrif-
ten' (3)
96/67/EC into
national law.

transposing Directive

2.2. Groundhandling services at the airport

At the date of the decision by the German authori-
ties, 54 of the 59 groundhandling services (cid:190) i.e.
all land-side services and certain air-side services
such as catering and fuel handling (cid:190) were already
open to competition, permitting a total of 28
service suppliers to operate. The exemption covers
certain air-side services which since 1998 have
been provided solely by a subsidiary of Berlin
Lufthansa Airport Services (BLAS), in which the
airport has a majority holding. These services are
baggage handling (point 3 of the Annex to the
transport
Directive),
between the aircraft and the terminal (point 5.4),
engine starting (point 5.5) and freight and mail
handling (point 4).

unloading,

loading,

and

2. Situation regarding groundhandling at

Berlin-Tegel airport

2.1. Presentation of the airport

Until 1990, Berlin Tegel airport served the western
served the
zone of Berlin, Sch(cid:148)nefeld airport
eastern zone, and Tempelhof airport was reserved
mainly for military operations. Following reunifica-
tion, Tegel became Berlin’s main airport. Air traffic
in Berlin is expected to increase by nearly 24 %
between 1996 and 2002, which not only makes it
necessary, at least for the time being, to keep all
three airports open and to reopen Tempelhof to
civilian flights, but also causes capacity problems at
Tegel airport, which is in greatest demand by
carriers on account of
its infrastructure and its
proximity to the city.

The increase in demand and the problems caused
in particular by inefficient use of
the runway,
resulting in excessive transfer times, prompted the
company which manages Berlin’s airports (BFG)
and its partners to decide to build the new Bran-
denburg International Airport on the existing
Sch(cid:148)nefeld site, the only site capable of meeting
space and environmental constraints. However,
pending completion of
the new airport, Tegel,
which handled nearly 9 million passengers in 1997,
may soon have to handle the bulk of the traffic. If
Tempelhof
is closed in 2001-2002, as currently
planned, much of its traffic would be transferred to
Tegel until 2007, when the new airport is sched-
uled to open.

(3) Bundesgesetzblatt 1997 Teil 1 Nr. 82, 16 Dezember 1997,

2885.

II. CONSTRAINTS REFERRED TO BY THE

GERMAN AUTHORITIES

(10)

The German authorities based their decision on the
impossibility of opening up the market for the
operations in question on account of the lack of
air-side space and capacity to accommodate an
additional operator, whether a service supplier or a
user wishing to self-handle.

(11)

1. Capacity problems

freight

Berlin Tegel airport was built with a design
capacity of 5,5 million passengers. However, since
1990, the airport management company has had to
cope with overcapacity of nearly 60 % on account
of rapid growth in the number of passengers and
amount of
transported (cid:190) 8,4 million
passengers and 24 000 tonnes of freight in 1996 (cid:190)
corresponding to a growth rate of 80 % over 10
years. Given this
the airport, which
situation,
cannot be extended beyond its existing boundaries,
and the northern part of which is reserved for
military use, has partly overcome its shortage of
capacity by creating new positions and additional
check-in desks, lounges, and parking areas, to the
extent that all spare space is now used to the full
and it is impossible to accommodate additional
groundhandling operations in the existing infra-
structure. The airport is managed at the limits of its
capacity. The capacity limit is set at 18 departures
and arrivals per hour on account of groundhand-
ling problems, but this limit is already exceeded
several times a day. Traffic is forecast to rise from
118 000 movements and 8 million passengers in
1996 to 125 000 movements and 10,2 million
passengers in 2000.

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L 121/23

(12) According to the German authorities, full use of
the groundhandling capacity requires full coopera-
tion between the various activities, especially air-
side. Moreover, managing the capacity shortage will
require changes to the groundhandling procedure
in the very near future. The multiplication of the
number of service suppliers for certain air-side
in recent years has
operations
fuel)
(catering,
complicated the management of
traffic on the
apron.

2. Shortage of space

A. Parking areas for groundhandling equip-

ment

(13) Of

the 14 500 m2 available for groundhandling
operations, 10 100 m2 can actually be used to park
equipment and, according to the German authori-
ties, all of
space is currently used. The
remaining 4 400 m2 are operational zones near the
aircraft parking areas which cannot be allocated to
an individual operator. Moreover, their triangular
shape makes them harder to use.

this

(14)

(15)

The current air-side requirement is for 10 700 m2
for all groundhandling service suppliers (excluding
winter equipment, which is not parked at specific
positions but distributed among the workshops and
several other airport areas); 8 000 m2 is allocated to
BLAS and 2 700 m2 to other operators. The esti-
mated current shortfall is 600 m2.

B. Baggage handling

The current baggage handling system comprises
nine ‘baggage cellars'
(seven around the terminal
itself and two in the terminal extension) which are
not interlinked. Each cellar has an area of between
300 m2 and 450 m2 and handles the flights of
aircraft at adjacent gate parking positions and at
remote positions. Each of the seven cellars around
the terminal is equipped with one conveyor for
arrivals and two conveyors for departures. The other
two cellars have a continuous double conveyor
system. Each cellar has staff changing rooms and
rest areas. According to the German authorities, the
shortage of space in these cellars prevents any
increase in the number of service suppliers, and
only a single service supplier can handle flights
properly and keep to transfer times. According to
the file submitted, there is insufficient space to
park all waiting trolleys and to cope with trolley
movements when several flights are handled at the
same time. Moreover, the association between each

(16)

(17)

cellar and the corresponding gate parking positions
makes
to
different service providers. Such allocation would
seriously affect the operation of the airport.

impossible to allocate the cellars

it

C. Areas reserved for staff use

The shortage of space also affects rest areas, which
are already full on account of the increase in traffic
and the multiplication of service suppliers. The
German authorities consider it impossible to open
new rest areas in the immediate future on account
of
administrative problems which such
constructions can cause. Moreover, in agreement
with the management, baggage handlers spend
their rest periods in rooms adjacent to the baggage
cellars; new rest areas could only be created at an
unacceptable distance.

the

for Tegel

Sch(cid:148)nefeld airport can be expected to reach full
capacity in 2001–2002, when Tempelhof airport
closes. The
is
carriers’ preference
expected to increase traffic at this airport by an
estimated 20 % (cid:190) to 10,2 million passengers a
year (cid:190) by the year 2002. The airport authorities
predict capacity problems both land-side and air-
side. The additional space required on the apron is
estimated at 700 m2, thereby increasing the short-
fall to l 300 m2, and this is based simply on the
increase in traffic, without taking account of the
impact of
service
supplier.

the arrival of an additional

3. Impact of the introduction of new opera-

tors

(18) According to the file submitted, the arrival of new
service suppliers would result
in a considerable
increase in space requirements on account of the
increase in the amount of equipment needed to
handle the peak periods of each service supplier.

(19) According to the German authorities, the impact
would depend on the number of new service
suppliers, the volume and structure of their opera-
tions, and their commercial policy.

(20)

Studies carried out on behalf of the airport tend to
show that on the basis of two new operators (service
suppliers or
self handlers) operating the same
policy as is currently operated by the sole operator,
and with one operator handling Lufthansa traffic,
the second operator handling the traffic of British
Airways and its subsidiary Deutsche BA, and the

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11. 5. 1999

third operator handling the other companies, 3 500
m2 would be needed to park the additional equip-
ment. The total space shortfall would thus be 4 100
m2, which would increase to 4 800 m2 by the year
2000 on account of the increase in traffic. However,
according to the additional documents handed over
by the airport authorities, certain service suppliers
forecast much higher equipment requirements, the
average figure being of the order of 6 500 m2.

(21) According to the German authorities, these studies
failed to take sufficient account of the impact of
the arrival of new operators on the market share of
the current sole operator, and hence of his reduced
requirements for equipment and staff and, there-
fore, space. However, they consider that given the
existing shortfall of 600 m2, it will not be possible
to find sufficient space for a new operator.

(22)

The file also refers to a considerable degradation of
traffic on the apron, which will be very difficult to
coordinate with the multiplication of the number
of operators, the airport already being at the limits
of its capacity. The increase in traffic due not only
to the amount of equipment, but also to the
changeover between equipment, will require a reor-
ganisation of runways which will affect the airport’s
capacity and lead to substantial delays, estimated at
32 % in 2002, compared with the current 12 %.

(23)

The study predicts an increase of between 20 %
and 50 % in traffic on the apron with the arrival of
a second operator, rising to between 140 % and
160 % at the north intersection point, resulting in
serious safety problems.

(24) However, the airport says that it is prepared to
accept a second operator insofar as this would have
only a limited impact on capacity, space and traffic
on the apron.

pursuant to the Directive and that no measures had
been taken to overcome the difficulties cited and
thus allow the market to be liberalised.

(26)

(27)

The current shortfall of 600 m2 referred to by the
airport could be overcome easily, and additional
space could be found by optimising the use of
existing areas. In particular, the winter equipment
could be moved to remoter parts of the airport,
thus making space available at positions 51 to 56
on the western part. The companies also claim that
the airport has failed to take account of the loss of
market share by the current sole operator following
the arrival of a new entrant.

The traffic forecasts put forward appear to be over-
estimates, as is shown by the latest trends, and
capacity requirements should therefore be adjusted
downwards. As
regards baggage transport and
handling, on the basis of the current possibility of
handling three
in the
simultaneously
flights
the arrival of a second service
baggage cellars,
supplier should not give rise to any problems, given
the space available in each cellar and the fact that
the number of trolleys depends on the number of
flights and not on the number of service providers.
The organisation of this area should not give rise to
problems, as the airport continues to have sole
responsibility. The companies claim that
the
problem of space, both on the apron and for
baggage handling, is primarily a matter of poor
management of the space available and ineffective
organisation.

III. REACTIONS OF THE INTERESTED PARTIES

(25)

The various
interested parties were invited to
submit comments in accordance with Article 9(3)
of the Directive. The companies which submitted
comments all stressed that the airport knew several
years in advance of the obligations it would face

(28) As regards staff areas, the companies recognise that
it would be difficult to find room for all the staff of
a second service supplier. However, the use of light
structures or the renting of space off-airport could
resolve the problem for new service suppliers, those
already present on the airport not necessarily
needing them. In general, the companies which
submitted comments consider that the situation is
liable to deteriorate at Berlin Tegel airport in the
next few years, whatever the increase in traffic, but
that this deterioration will have nothing to do with
the presence of a sole or several groundhandling
service operators.

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

restrict

the provision of groundhandling
(d),
services to third parties to a single supplier and ban
self-handling or restrict it to a single user.

1. The rules in force concerning ground-

handling

1.1. The scope for limiting access to the

market

(29) Council Directive 96/67/EC provides

the
market to be opened up to different extents as a
function of the way ground handling services that
are provided (self-handling or service suppliers) and
the level of traffic at the airport.

for

(30)

The general rules governing groundhandling for
the service categories listed in the German authori-
ties’ notification are set out in Articles 6(2) and 7(2)
the Directive. Those rules have been incor-
of
porated into the provisions of Article 3(2) of the
German regulations transposing the Directive. The
Directive provides that a Member State may restrict
self handling to not less than two users, who must
be selected on the basis of relevant, objective, trans-
parent and non-discriminatory criteria, and that
suppliers must be chosen through a public tender
procedure. On this basis Berlin Tegel airport is
required, pursuant to Annex 5 of the ‘Verordnung
(cid:129)ber Bodenabfertigungsdienste auf Flugpl(cid:132)tzen und
zur (cid:142)nderung weiterer luftrechtlichter Vorschriften'
of 10 December 1997 (4) which transposes the
Directive into German Law, to open up the market
for groundhandling services to a second service
supplier and to permit self handling by two users
for the services in respect of which the number of
service suppliers or self-handling users can be
limited pursuant to Articles 6(2) and 7(2) of the
Directive.

(31) However, where

or

space

specific

capacity
constraints, arising in particular from the rate of
utilisation of space or space occupation, make it
impossible to authorise self-handling or the provi-
sion of services to third parties to the extent
provided for by the Directive, the Member State
concerned may, on the basis of Article 9(1)(b) and

(4) See 3.

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

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

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

ures to overcome the constraints.

Moreover, pursuant to Article 9(2), it 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.

1998

(32) As stated by the Commission in its decisions of 14
January
and D(cid:129)sseldorf
on Frankfurt
airports (5), the main aim of the Directive is to
liberalise groundhandling services. The restrictions
imposed on third parties are restrictions on the
freedom of such parties to supply such services. By
analogy with State measures restricting the freedom
to supply services (6), measures likely to exclude or
prohibit the activities of service suppliers or, in the
present instance, those of users wishing to self-
handle, even if they apply without distinction to
national service suppliers or users and to those
from other Member States, must be justified by
overriding public-interest requirements and not by
economic factors and must, moreover, be in
proportion to the aims pursued.

1.2. Procedure

(33)

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

(34) As stated in its two decisions on the airports at
Frankfurt and D(cid:129)sseldorf (7), the Commission must
direct its examination towards:

(cid:190) the existence and extent of

the constraints
justifying the exemption and the inability to
open up the market to the extent provided for
by the Directive; only space and/or capacity
constraints may be taken into account,

(cid:190) the plan of appropriate measures intended to
overcome those constraints; that plan must be
credible and unconditional and include a time-
table for the implementation of those measures,

(5) Commission Decisions of 14 January 1998, p.

(OJ L 173,

18.6.1998, p. 32).

(6) Judgments of 25 July 1991 in Cases C-288/89 Mediawet
[1991] ECR I, p. 4007 and C-76/90 S(cid:132)ger v. Dennemeyer
[1991] ECR I, p. 4221.

(7) See 5.

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11. 5. 1999

(cid:190) conformity with the principles of compliance
with the aims of
the Directive, absence of
distortions of competition, and the extent of the
measure, as referred to in Article 9(2) of the
Directive.

2. Examination of the constraints referred to

by the German authorities

(38)

(39)

(40)

(35)

The aim of granting an exemption is not to give
the airport a further adaptation period in addition
to that already granted by Article 1 of the Directive.
It is to permit the airport to overcome the specific
constraints which it may encounter when the
market is liberalised. Any exemption must there-
fore be examined in the light of
the specific
the
constraints put
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 interpreted
strictly and when the scope of an exemption is
determined account must be taken of the purpose
of the measure in question (8).

forward in justification of

(36)

This exemption must be examined in the light of
these considerations.

(37)

In accordance with Article 9(4) of the Directive, 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 studies provided by
the German authorities, its visit to Berlin Tegel
airport, and the technical assessment made at its
request by Aerotec. Finally, the Commission took
account of the comments made by the airport and
the German Government concerning the Commis-
sion’s analysis, and in particular those concerning
space constraints in the staff rest areas adjacent to
the baggage halls. According to the German
authorities, the Commission appears to have under-
estimated these constraints. They restated their
view that
is not possible to accommodate a
second service supplier in the baggage halls. They
dispute the Commission’s assessment of the space
requirements of a second service supplier, esti-
mated at 1 200 m2.

it

(8) See 5.

2.1. Available space

A. Space for parking equipment

The layout of the terminal gate parking positions
and their use for various types of aircraft show that
the best possible use is made of this space for
parking groundhandling equipment and that it is
not possible to make additional space available.
However, when we visited the airport we discovered
that a large number of private vehicles were parked
alongside the terminal and the baggage cellars. It is
difficult to claim that these vehicles serve opera-
tional objectives such as the supervision of ramp
handling, as on the day of our visit we observed
that these vehicles had not been moved for at least
five hours, i.e. for most of the working day between
10.00 and 15.00. It would therefore be perfectly
feasible to park waiting baggage trolleys here.

the

groundhandling

Likewise, as regards the freight and mail handling
equipment
installations,
parked here had not been used between at least
10.00 and 15.00. Moreover, on the afternoon of the
Commission’s visit to the airport installations and
apron, no aircraft movement or handling was
recorded. As the airport authorities stated that the
groundhandling equipment was allocated, i.e. the
equipment parked here was used only for freight
and not for handling passenger operations (baggage
transport), we can deduce that all the freight and
mail handling equipment was parked during this
completely slack period. Our examination of
equipment parking areas
scarcely
more than half of the space was then being used.

showed that

The study carried out on behalf of the Commission
compared with similar situations in other airports
and the standards and practices recommended by
International Civil Aviation Organisation
the
contradict the report submitted on the shortage of
space on the apron. These standards and practices
specify which areas and positions can be reserved
for safety requirements and equipment at aircraft
positions, according to the type of aircraft. They
show that, in the case of TIPO positions (requiring
the use of pusher tugs on departure), and taking
account of the category of aircraft positions in this
area, some 200 m2 could be made available on each
side of the aircraft nose. Using just two of the six
positions in this area of the airport, an area of
nearly 800 m2 could thus be made available

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L 121/27

without infringing the safety standards defined by
the ICAO. The airport comprises more than 20
remote TIPO positions where these arrangements
could be applied. Thus it appears to be possible to
this requires rigorous
make space available, but
management of operations on the apron, and in
particular clear markings on the tarmac and strict
use of positions and movements around the
aircraft.

(44)

(41)

Thus the German authorities have failed to demon-
strate that there is insufficient space to park the
groundhandling equipment required by a second
operator on the apron.

B. Baggage handling

(42)

(43)

of

arriving

transport

Baggage transport between the aircraft and the
terminal does not
in itself appear to pose any
specific problems. There are seven baggage cellars
the terminal, plus two cellars
on level zero of
equipped with a double conveyor permitting simul-
taneous
and departing
baggage. The other seven cellars each have two
conveyors for departures and one conveyor for
arrivals. The surface of each cellar varies between
300 m2 and 450 m2. Each cellar (cid:190) except those
equipped with double conveyors, which handle
only remote positions (cid:190) has to handle baggage
from the two immediately adjacent gate parking
positions and a number of remote positions. Thus
the transport time between the gate parking posi-
tion and the system itself is very short, so there is a
large and rapid rotation of trolleys and relatively
few trolleys are required.

Inside each of the terminal cellars, the space al-
located and the one-way traffic system make it
easier to accommodate a second operator than is
the case in other airports. According to the assess-
ment made on behalf of the Commission, at Berlin
Tegel waiting trolleys are parked inside the system.
stated in the Commission decision
As was
the
concerning
number of trolleys which a system needs depends
on the number of flights to be handled at a given
time and not on the number of operators. It is for
the airport authority to manage in an appropriate
and non-discriminatory manner the number of
trolleys needed for transport operations. Space on
the apron,
that alongside the
terminal currently reserved for private vehicles

the Cologne/Bonn airport (9),

including part of

(9) Commission Decision of

30 October

1998

concerning

Cologne/Bonn airport (OJ L 300, 11.11.1998, p. 25).

(45)

(46)

referred to above, can be used to park waiting trol-
leys.

Likewise, traffic inside each cellar is such that the
arrival of a second operator for baggage transport
will not cause serious problems. Luggage unloading
takes only a few minutes, largely because of the
proximity of the gate parking positions, and the
simultaneous handling of departing and arriving
flights appears to be entirely feasible. It has not
been shown, on the basis of flight schedules, that it
is impossible to handle two arrivals and one depar-
ture at
the same time. Compared with other
airports with the same type of system, such as
London Heathrow, the space inside the cellar (cid:190)
and in particular the traffic lane in the middle (cid:190)
and the one-way traffic system allow two or even
three tractors belonging to two different companies
to pull trolleys at the same time. There is sufficient
room for trolleys to pass each other.

C. Other ramp handling operations

The report submitted by the German authorities
makes no specific reference to other ramp handling
operations. We have already noted that there is
sufficient space on the apron to park the equip-
ment of a second service supplier. The buses used
to transport passengers to and from remote posi-
tions do not need to be parked near the terminal,
as they can travel quickly across the apron and can
therefore wait or be parked on remote areas, e.g.
near the remote positions, as is the case at many
other airports, including London Heathrow.

to the

aircraft or

It is clearly preferable for the space allocated to
handling equipment and operations to be located
terminal buildings,
close
according to the type of operation. However, this is
not essential. The Directive lays down that the
Member State authorities must show that
is
impossible to open up the market to the degree
required. The Member State must show that there
is insufficient space to park the equipment and
carry out the intended operations, without specif-
ically setting quality criteria for each of the posi-
tions. In the case of Berlin Tegel airport, such
equipment could be parked near positions 33, 34
and 35, where the airport authorities intend in any
case to free up space. This might in some cases

it

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Official Journal of the European Communities

11. 5. 1999

tasks, but

it does not
complicate management
make it impossible to open up the market. It is up
to the applicant to familiarise himself with the
constraints under which he will have to operate
and to decide whether it is in his interest to operate
at this airport.

(51)

aircraft at a substantial distance would be much
more problematical, and the lack of sufficient space
in the vicinity would make it impossible to accom-
modate a second operator on the apron.

The problem of freight and mail handling opera-
tions is quite separate, as these operations are
carried out in a separate part of the airport using
and installations, which
dedicated equipment
include a rest area for staff carrying out certain
freight handling operations. The absence of addi-
tional space for staff who have to stay reasonably
close to their operating area means that any new
operators must already have rest areas for their staff
and not require new rest areas. Given the current
absence of service providers in this part of the
airport, and taking into account the space available
for equipment and the absence of space in the
vicinity for
the
refusal to allow a new service supplier but rejects
the exemption banning self handling for freight
and mail handling operations.

the Commission accepts

staff,

2.2. Accommodating new operators

(52)

In general,
the Commission agrees with the
German authorities that the study presented by the
airport fails to take account of the effect on the
current sole operator of the new entrant winning
market share, and that this will permit space to be
made available.

(53) However, the Commission recognises that if the
transfer of market share is relatively small (cid:190)
around 10-15 %, as assessments of other airports
covered by exemptions have shown (cid:190) the reduc-
tion in the space requirements of the existing sole
operator may be minimal, and the equipment of
the new service provider must simply be added to
that of the existing sole operator.

(54)

The figures given in the study of the impact of new
operators are substantial overestimates.

(55)

Taking as an example self-handling by the largest
carrier operating at the airport, on the basis of the
current flight schedules supplied by the airport,
equipment requirements would be equivalent to
some 70 % of the equipment currently used by the
airport (for an area of approximately 5 600 m2). The
amount of new equipment
introduced by the
second operator will inevitably be greater than the
reduction in the equipment (cid:190) and therefore space
(cid:190) requirements of the current sole operator, which

D. Rest areas

(47)

The file submitted by the German authorities refers
to the rest areas located in each baggage handling
room. There are at least seven such areas, each of
approximately the same size as
the baggage
handling rooms. Thus an area of between 1 800 m2
and 2 000 m2, or more, is reserved for staff. The
German authorities have nevertheless stated that
these areas serve not only the current sole operator
of baggage handling services but also the other
service providers and carriers performing certain
groundhandling operations at the airport, and that
because of the distance between certain rest areas
the
and the corresponding operational areas (at
other end of
the terminal building), baggage
handling staff in the remote cellars take their rest
periods in their operational areas, by agreement
with the airport management.

(48) However, even if

these rest areas

serve staff
performing all groundhandling operations, and
taking the rules on the size and management of
staff common rooms into account, the space avail-
able in the terminal might be sufficient to accom-
modate the staff which a second operator would
need to handle and transport baggage, who, given
their function, would be working close to the
existing rest areas. However, there is not sufficient
space to accommodate more than one additional
operator.

(49) As regards the accommodation of staff responsible
for passenger transport operations, it has not been
shown that it is impossible to install temporary
buildings such as Algeco containers near certain
remote areas, in particular positions 33, 34 and 35,
where the airport authorities intend in any case to
make additional space available for groundhandling
operations. It
is therefore up to the applicant
service supplier to familiarise himself with the
constraints within which he will have to operate
and to take these constraints into account when
assigning his staff.

The same reasoning can be applied to the transport
of crews.

(50) Whereas there is no need for the staff responsible
for passenger and crew transport operations to be
stationed in the immediate vicinity of the terminal
building or their operating areas, stationing the
staff responsible for loading and unloading the

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Official Journal of the European Communities

L 121/29

exemptions,

been granted

the Commission’s assessment estimates at about
40 % (or 4 000 m2). The net increase in space
requirements is therefore estimated at 30 % or
2 400 m2. On the same basis, the arrival of a service
supplier taking a 10 % to 15 % market share,
which corresponds to the assessments habitually
made in the studies carried out by other airports
which have
and
assuming that there will be no reduction in the
equipment requirements of the current sole oper-
ator, the increase in space requirements can be
this
estimated at
amount of
in
accordance with the standards laid down by the
ICAO, around only three or four, or perhaps five of
the 20 or so TIPO positions, taking account of the
German authorities estimated requirement of 2 000
m2. Requirements on this scale are possible only in
the extreme and highly unlikely hypothesis that
the new operator would also operate during all the
peak periods of his competitor.

l 200 m2. As stated above (10),
space could be made available,

(56)

The detailed requirements associated with the
arrival of certain companies, as supplied by the
airport, suggest that the new operators would carry
out all the operations currently carried out by the
sole operator, which is unrealistic. The figure of
l 200 m2 estimated by certain interested parties is
more realistic, and our analysis has shown that such
requirements can be met.

(57)

The Commission recognises the problem of traffic
growth over the next few years and the need for
extra positions and terminal installations. However,
the impact of the arrival of a new operator on the
number of movements on the apron is overes-
timated. The number of movements on the apron
depends above all on the number of aircraft move-
ments and, with a maximum of 18 arrivals and
departures per hour, as
traffic from
remote positions can cross the taxiways without
affecting traffic. During peak periods, operators will
have to be very careful, and it is up to the airport
authority to enforce the standards for traffic on the
apron. A number of European airports with a large
number of movements around far more congested
terminals cope with traffic crossing taxiways in
strict compliance with safety standards.

indicated,

(10) See 2.1.A.

the
Thus there is sufficient space available at
airport to accommodate the equipment of a second
supplier of groundhandling services, whether this
space is found alongside the terminal building or at
the head of aircraft positions, or at remote positions
in the case of the buses used to transport passen-
gers. An applicant service supplier will assess his
interest in operating at the airport on the basis of
the space constraints of which he is informed in
accordance with the Directive. However, the space
available for staff rest areas is not sufficient
to
accommodate a new service supplier for all opera-
tions on the apron. Thus the concentration of rest
areas in the terminal building should allow the
to be opened up to a second service
market
supplier for baggage transport operations, and the
bus drivers can be accommodated in remote areas.
For the other operations concerned by the exemp-
tion, the principles laid down in the Directive can
be applied only to self handling by a carrier not
requiring additional space for his staff.

access

The fifth recital of the Directive states that ‘the
opening-up of
to the groundhandling
market should help reduce the operating costs of
airlines and improve the quality of service provided
to airport users'. However, the Directive will only
be effective if such access is real. De jure liberalisa-
tion which is not translated into de facto liberalisa-
tion, as has been the case since 1 January 1998 for
self handling, would hinder the achievement of the
aims of
liberalisation
which also helped to improve the services provided
to, and the prices paid by, many users, as referred
to in the fifth recital, would help to achieve the
aims of the Directive by introducing competition
between providers. As the airport has sufficient
space to allow the market for certain categories of
services to be opened up only to one new operator,
the presence of a supplier of services to third
parties would be the only way to achieve these
objectives.

the Directive. In contrast,

3. Plan of appropriate measures

(58)

In accordance with the provisions of Article 9(2) of
the Directive, the file submitted by the German
authorities identifies measures to overcome the
constraints cited.

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11. 5. 1999

(59)

The airport manager has adopted an extension
plan. The first step in the plan is to extend the
airport’s capacity by building a new terminal. The
new terminal would be situated to the east of the
existing terminal. The existing parking areas would
be redeveloped, a new apron built, and the main
access transferred to the eastern side of the tower,
which would reduce the current congestion at the
runway intersection point in the northern part of
the airport.

(60) However,

the final decision to build the new
the
terminal still depends on the obtention of
requisite administrative authorisations and on the
readiness of investors in the planned future Berlin
Brandenburg airport.

(61) As mentioned above, the plan of measures to over-
come the constraints cited must be credible and
unconditional, and be accompanied by a timetable
for its implementation. The Commission cannot
consider a plan whose very implementation is
uncertain, not to mention its date of implementa-
tion, to constitute a plan of appropriate measures
within the meaning of Article 9 of the Directive.

(62) However, the German authorities also referred to

two other measures:

(cid:190) transformation of five areas (numbered on the
plan annexed to this Decision) which are
currently grassed over into areas for the opera-
tion and parking of groundhandling equip-
ment; these areas, which are located close to the
operational areas, and are referred to in the
‘Lageplan: Planzustand BZW Anderung: Alte
Beststandplan Nr 62', which is based on the
situation at 6 November 1998, will provide
for groundhandling operations by
6 300 m2
autumn 2000, thus allowing new operators to
be accommodated in accordance with the
Directive and the national rules transposing the
Directive for German airports,

(cid:190) conversion of

the building which currently
houses the car hire services: a storey will be
added to the building in order to make the
ground floor available for
the parking of
groundhandling equipment and to solve the
baggage handling problem.

(64)

(65)

plan of appropriate measures set out in Article 9 of
the Directive.

4. Compliance with the criteria set out in

Article 9(2) of the Directive

The fact that there is sufficient space to accommo-
date the equipment and staff of an operator other
than the current sole operator for the categories of
groundhandling services covered by the exemption
shows that the scope of the exemption is wider
than necessary. However, as the work intended to
allow the market to be opened up to the degree
laid down in the Directive and the German regula-
tions transposing it for the groundhandling catego-
ries in question, i.e. to two service providers and
two users authorised to carry out self-handling, is
the
scheduled for completion in autumn 2000,
exemption does not cover a longer period than is
necessary.

V. CONCLUSION

The German authorities have failed to show that it
is impossible to open up the market to a second
service supplier for all the categories of services
covered by the exemption. There is sufficient space
available for parking equipment and for staff on the
apron and in the terminal to allow the market to be
opened up to a second service supplier, without,
however, allowing a user to carry out self-handling
during the period of the exemption, for baggage
handling and the transport of baggage, passengers
and crew. However, the absence of adequate infra-
structure in other parts of the apron or the terminal
to accommodate staff obliges the airport to open up
the market for freight and mail handling opera-
tions only to carriers not requiring additional staff
accommodation in order to carry out self handling
in this part of the airport. Likewise, the shortage of
space on the apron and the fact that additional
space for rest areas for staff responsible for loading
and unloading operations and aircraft movements
cannot be made available near their operating areas
justifies the reservation of these operations only to
a sole operator during the period of the exemption,

HAS ADOPTED THIS REGULATION:

Article 1

(63) As no specific administrative approval is required
for the conversion of the building, and the German
authorities have undertaken to carry out this work
the
in order to allow full compliance with all
requirements of the Directive by the end of the
period of validity of the exemption, these measures
can be considered to conform to the definition of a

The decision of the German authorities of 26 January
1999 to grant an exemption to Berlin Tegel airport, of
which the Commission received notification on 29
January 1999,
the
Federal Republic of Germany adds the following restric-
tions:

is hereby approved provided that

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Official Journal of the European Communities

L 121/31

(cid:190) ban on self-handling until 31 December 2000,

Article 2

only for the categories of services referred to in points
the transport of passengers,
3, 5.4 (in respect of
baggage and crew) and 5.6 of
the Annex to the
Directive,

(cid:190) reservation until 31 December 2000 for Berlin Tegel
Airport (Berliner Flughafen GmbH) of the provision
of services to third parties,

for the categories of services referred to in points 4,
5.4 (in respect of the loading and unloading of the
aircraft) and 5.6 of the Annex to the Directive.

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

Article 3

This Decision is addressed to the Federal Republic of
Germany.

Done at Brussels, 27 April 1999.

For the Commission

Neil KINNOCK

Member of the Commission