2000/123/EC: Commission Decision of 10 January 2000 on the application of Article 9 of Council Directive 96/67/EC to Funchal airport (notified under document number C(1999) 5194) (Text with EEA relevance) (Only the Portuguese text is authentic)
Date: 2000-01-10
Institutions: European Commission
Subjects: Madeira, airport, market access, provision of services, transport infrastructure, works contract

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Official Journal of the European Communities

L 39/67

COMMISSION DECISION

of 10 January 2000

on the application of Article 9 of Council Directive 96/67/EC to Funchal airport

(notified under document number C(1999) 5194)

(Only the Portuguese text is authentic)

(Text with EEA relevance)

(2000/123/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(2)

Having regard to the Treaty establishing the European
Community,

of

to Article 9(3)

Pursuant
the
Commission published an extract from this notification
in the Official Journal of the European Communities of 25
November 1999 (2) and invited interested parties to
submit comments.

the Directive,

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,

(3)

In accordance with Article 9(5) of the Directive, the
Commission consulted the Portuguese Government on
its draft evaluation on 8 December 1999.

Having regard to the decision of the Portuguese authorities, as
notified to the Commission on 11 October 1999, and after
consulting those authorities,

Basis of the exemption

After consulting the Advisory Committee,

(4)

Whereas:

1. Scope of the exemption notified by the

Government of Portugal

1.1. Notification by the Portuguese authorities

(1)

By letter received by the Commission on 11 October
1999, the Portuguese authorities notified a request for
approval of the decision of the Portuguese Government
to grant Funchal airport an exemption to:

(cid:151) restrict self-handling to two users for the categories
of services listed under point 2 of the Annex to the
Directive,

the

safety,

The general rules for access to the groundhandling
services market are set out in Articles 6 and 7 of the
Directive. These provisions clearly state the principle
that most categories of groundhandling services should
be opened up to the maximum possible extent. For an
airport with a volume of traffic like that of Funchal with
1,7 million passengers in 1997, the Directive provides
for recognition of the right to self-handle as from 1
January 1998. However, in order to take into account
the specific situation and role of an airport, and in
particular
and capacity
security,
constraints which can arise in certain parts of most
complete
airports,
liberalisation for
located
four categories of
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 services to third
parties. The categories concerned are ramp handling,
baggage handling, fuel handling and certain freight and
mail handling operations, corresponding in particular to
points 3, 4 and 5 listed in the Annex and covered by
this Decision. As
(cid:145)passenger(cid:146)
right
self-handling,
this is not normally restricted in the
context of self-handling rights and each carrier should
be able to make use of this right.

the Directive does not

services

impose

space

the

for

to

(cid:151) restrict

the
self-handling to a single user
categories of services listed under points 3, 4, 5.2,
5.3, 5.4, 5.5 and 5.6 of the Annex to the Directive.

for

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

(5) However, Article 9 of Directive 96/67/EC also takes
account of the fact that,
in very special cases, severe
space and/or 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 time to overcome the constraints.

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

(2) OJ C 337, 25.11.1999, p. 4.

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These exemptions can therefore be only exceptional in
intended to automatically give
nature and are not
airports an extra transitional period in addition to that
already provided for in Article 1 of the Directive.

(6) An exemption can be granted only on the basis of
specific space or capacity constraints. This is the basis
on which the Portuguese
authorities granted the
exemption covered by this decision in accordance with
Article 23 of Portuguese Decree-Law No 275/99 of 23
July 1999 transposing Directive 96/67/EC into national
law (3).

handling,

and mail

(10) On the other hand, the Directive provides for the right
to self-handle with effect from 1 January 1998. TAP
currently self-handles for the operations covered by the
exemption, namely those relating to passenger, baggage,
freight
handling
operations. Until the end of 1998 TAP benefited under
to Article 4 of
a public service obligation pursuant
Council Regulation No 2408/92 for
service
connecting the island of Madeira with the Portuguese
mainland; it accounted for 66 % of movements. Overall,
it operates 69 % of movements to and from Funchal
airport,
involving 85 % of passenger movements and
95 % of freight.

ramp

and

the

1.2. Presentation of the airport

(7)

Funchal airport has a passenger terminal alongside a
1 800 metre runway oriented south-west/north-east
with a declared capacity of 9 movements per hour.
Located in the autonomous region of Madeira,
this
importance to the economy of this
airport is of vital
outlying island region. Access
is difficult, however,
owing to the area’s weather conditions (cid:151) mainly strong
winds. This difficulty is heightened by the location of
the airport on the sea coast and against the mountains,
which meant that the terminal had to be built on four
levels to save space.

(11)

(8)

the number of movements grew by an
In general,
average of 3 % a year over the period 1990 to 1995;
growth then increased substantially up to 16,5 % later in
the nineties.

Passenger
traffic was 1,53 million in 1997 (nearly
1,7 million in 1998) and is growing at an average of
6,5 % a year; connections with mainland Portugal
account for 88 % of that traffic. Traffic structure has not
changed since the 1980s and is divided into half
domestic and half
two thirds of
traffic being scheduled flights.

international

flights,

(13)

Mean annual growth is forecast at 4 % for the next five
years, due mainly to the larger aircraft which can use
the airport since the runway was extended.

1.3. Situation regarding handling at Funchal airport

(14)

(9)

Since traffic is less than three million passengers and
75 000 tonnes of freight, the opening-up of the market
does not concern services provided to third parties. Part
of these services, which account for 31 % of the airport’s
movements, are already provided two thirds by TAP and
the rest by TRIAM.

(3) DiÆrio da Repœblica (cid:151) 23.7.99 (cid:151) I Series-A No 170, p. 4588.

2. Constraints referred to by the Portuguese

authorities

2.1. Notification by the Portuguese authorities

The present position of TAP as the only company
entitled to self-handle is to a large extent explained by
the fact that benefited until
last year under a public
service obligation for the domestic routes with mainland
Portugal. In 1997, total scheduled traffic accounted for
77 % of movements and 88 % of those movements were
operated by TAP.
is
evaluated at 66 %, 78 % of which is carried by TAP.

Scheduled passenger

traffic

(12) According to the dossier presented by the Portuguese
authorities, there are space and capacity problems for
both terminal and air-side operations.

For departures from the terminal, the check-in area is
currently limited to 480 m2 for 15 check-in desks (plus
three desks on the side with no space for queuing).
Only 10 desks, allocated to TAP, have computerised
systems; the provider TRIAM, which operates charter
flights only, carries out check-ins manually. The lack of
space in the boarding area causes real problems for
passengers travelling at peak times, forcing them to wait
for a long time in cramped conditions in a terminal
which has no
Portuguese
authorities consider that it would not be possible to
accommodate an additional handler.

conditioning;

the

air

Baggage handling (point 3 of
the Annex to the
Directive) is carried out manually over a length of 30
metres and in premises of 350 m2 where it is difficult
to manoeuvre
to
it would
accommodate an additional handler.

impossible

and

be

(15) According to the dossier submitted by the Portuguese
authorities, there is very little space on the apron for
air-side operations (point 5 of
the Annex) and the
the two present handlers, TAP and
equipment of

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TRIAM, fill that space completely (2 000 and 200 m2
the equipment maintenance
respectively). Moreover,
sheds, although recent, seem to be already inadequate,
with space of only 400 m2 for TAP and 200 m2 for
TRIAM. Furthermore, at peak times (30 peak hour with
traffic on the apron is especially
nine movements),
difficult and dangerous since all the aircraft positions
are of the (cid:145)nose-in(cid:146) type, requiring fairly heavy pusher
tugs at all times. Yet the airport has a single two-way
service road crossed by embarking and disembarking
pedestrians.

The new freight shed has an area of only 450 m2 and is
currently fully occupied by TAP which self-handles 95 %
of all the airport’s freight traffic.

The Portuguese authorities therefore consider that it is
not possible to accept an additional handler for these
operations, some of which are already provided by two
handlers.

(16)

(17)

3. Reactions of the interested parties

(18)

Following the publication by the Commission of an
extract of the notification by the Portuguese authorities,
and in accordance with Article 9(3) of the Directive, the
various
invited to submit
comments.

interested parties were

allows a Member State to restrict
self-handling of
baggage, freight and mail, and air-side operations to not
less than two users. The latter must therefore be selected
on the basis of
transparent and
relevant, objective,
non-discriminatory criteria. Self-handling for passenger
operations is normally open to all users.

(21) However, where specific space or capacity constraints,
arising in particular from the rate of utilisation of space
or space occupation, make it impossible to authorise
self-handling or the provision of services to third parties
to the extent provided for by the Directive, the Member
State concerned may, depending on the categories of
service concerned, restrict the number of self-handlers
on the basis of Article 9(1)(c) or ban self-handling or
restrict it to a single user on the basis of Article 9(1)(d).

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

(cid:151) specify the category or categories of groundhandling
services for which the exemption is granted and the
specific constraints of available space or capacity
which justify it,

(cid:151) be accompanied by a plan of appropriate measures

to overcome the constraints.

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

No particular opinion has been delivered on this
exemption.

(cid:151) unduly prejudice the aims of the Directive,

(cid:151) give rise to distortions of competition,

4. Evaluation of the exemption in the light of the

provisions of Directive 96/67/EC

(cid:151) extend further than necessary.

4.1. The rules in force concerning groundhandling

4.1.1. The scope for limiting access to the market

(19) Directive 96/67/EC provides

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

the market

for

(20)

The general rules governing groundhandling for the
categories of service listed in the Portuguese authorities’
notification are set out in Article 7 of the Directive.
Those rules have been incorporated into the Portuguese
regulations transposing the Directive (4). The Directive

(4) DiÆrio da Repœblica (cid:151) 23.7.99 (cid:151) I Series-A No 170, p. 4588.

(23) As stated by the Commission, inter alia, in its decisions
of 14 January 1998 on Frankfurt and Dusseldorf
airports (5), the main aim of the Directive is to liberalise
groundhandling services. The restrictions imposed on
third parties consist of restrictions of freedom of such
parties to provide 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.

(5) Commission Decisions of 14 January 1998, OJ L 173, 18.6.1998,

pp. 32 and 45.

(6) Judgments of 25 July 1991, Cases C 288/89 Mediawet, [1991] ECR

I-4007 and C-76/90, S(cid:228)ger v Dennemeyer, [1991] ECR I-4221.

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4.1.2. Procedure

4.2. Examination of the constraints referred to by the

Portuguese authorities

(24) As

stated in its

two decisions on the airports at
Frankfurt and Dusseldorf (7), the Commission must focus
its examination on:

(28)

(cid:151) 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:151) the plan of the appropriate action that is intended
to overcome those constraints; that plan must be
credible and unconditional and include a timetable
for the implementation of those measures,

(cid:151) 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.

(25)

The aim of granting an exemption is not to give the
airport a further adaptation period in addition to that
already granted by Article 1 of the Directive. It must
permit the airport to overcome the specific constraints
which it may encounter when the market is opened up.
Any exemption must therefore be examined in the light
of the specific constraints put forward in justification of
the impossibility of opening up the market within the
time allowed. In addition, in accordance with the case
law of
European
Communities (8), any exception must be interpreted
strictly and the scope of any exemption must be
determined on the basis of the purpose of the measure
in question.

the Court of

Justice of

the

(26)

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

(31)

(27)

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 Portuguese
authorities’ decision is appropriate to those constraints,
and the measures put forward to overcome them.
It
based its examination on the dossier submitted by the
Portuguese authorities, on the visit it made to Funchal
airport on 8 November 1999, and on the technical
assessment made at its request by Aerotec. Finally, the
Commission took account of the comments made by
the airport and the Portuguese Government concerning
the Commission’s analysis.

The island of Madeira is a major holiday destination and
Funchal airport is essential for this tourist development.
Annual traffic growth is estimated at 4 % for the next
five years, almost all of it accounted for by passenger
traffic. The airport has extended the runway and
substantially
airport’s
situation, especially as regards the space available on the
apron, is therefore temporary and should improve, for
some areas of the apron, over the next few months as
the work proceeds.

terminal. The

enlarged

the

(29) With 1,53 million passengers in 1997, Funchal airport
must allow self-handling by carriers in order to comply
with the Directive. In view of the substantial growth in
traffic, from 2001 when it exceeds the threshold of two
million passengers a year, the airport should also open
up competition for groundhandling operations for third
parties. The Portuguese authorities’ exemption relates to
a restriction for passenger groundhandling operations,
which should be entirely liberalised, and self-handling
services on the
sorting,
passenger and crew baggage transport and freight and
mail operations.

covering baggage

apron,

Passenger groundhandling operations

(30) According to the Portuguese authorities

there are
capacity and space problems
in the terminal, with
serious congestion in the check-in hall. The Commission
acknowledges that there may be serious difficulties in
the hall since it
the passengers
waiting to check in at certain peak times, in view of the
number of flights that have to be processed at those
times.

is too small

for all

are

groundhandling operations

Passenger
currently
carried out by two companies: TAP (cid:151) which handles its
own aircraft and those of third-party customers (cid:151) and
the
independent TRIAM company which provides
services to third parties consisting entirely of charter
carriers. Airport users thus already have a free choice
for passenger groundhandling services.

(32) However, according to Article 7(1) of

groundhandling

operations must

the Directive,
fully
these
liberalised in the case of self-handling. The only grounds
for restricting the number of self-handling users are
space
therefore
necessary to check whether it is impossible to accept
new operators.

constraints.

capacity

and/or

be

is

It

(7) See footnote 5.
(8) See footnote 6.

(33) While there can be no doubt of the cramped nature of
the present check-in hall, it must be acknowledged that

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the problem is caused by the hall itself and to a lesser
extent by the number of check-in desks. It is not the
fault of the company processing check-ins, whether it
be one of the current two providers or a newcomer. It
is not the practice, as in some airports, to check-in
several flights at the desks at the same time. Specific
desks are assigned one at a time to each flight
concerned, two or three hours in advance. Therefore,
the operator only moves on to the next flight once the
previous one is completely checked in. If all 18 desks
are assigned to a flight, the number of operators is of
no import since the number of desks remains constant
owing to the system of checking in one flight at a time,
and so capacity does not vary either.

From a practical point of view, in the worst case, i.e. on
the busiest day of the year,
in actual fact the flights
planned for 3 January 2000, the flight schedules show
that there are only two hours when there might not be
enough desks and even then,
two desks would not
overlap for more than 20 minutes.

The Portuguese authorities argue that four desks could
not be properly used owing to their poor location in
the hall. However, these desks were indeed in use on
the day of the Commission’s visit, which was not a
It must be acknowledged that
particularly busy day.
their position in the terminal makes them impractical
and access to desks 1 and 2 is very tight. However, they
would be more usable if they were used for a single
In any case,
flight, sharing a single check-in queue.
limiting the number of operators would have no impact
on present congestion in that area, nor would it reduce
the need for extra desks.

(34)

(35)

(36)

The flight schedules for the busiest day of the year show
that between 08.00 and 10.30, five desks are free in the
area currently assigned to TRIAM and that no desk is in
use between 16.30 and 22.00. Similarly, on certain days
in November, TRIAM is not using a single desk. The
eight TAP desks are in use but, between 11.00 and
15.45, at least three of them could be freed according
to the flight
schedules and the usual practice for
assigning desks.

(38)

In view of the flight schedules and check-in practices,
the admission of new self-handling users would not
aggravate the airport’s difficulties;
these are real but
related to the waiting area. The airport should therefore
assign the desks to the various operators on a clear and
fair basis according to their individual needs.

Baggage

(39)

Based on the Portuguese authorities’ arguments in the
dossier, the baggage sorting and loading area is very
small. Baggage is processed manually from a straight 30
metre conveyor by two service providers. It would be
quite impractical to admit an additional operator for
baggage sorting. The same applies to baggage transport
in and out of that hall, owing to its restricted access.

Air-side operations

(40) With the exception of baggage transport, where it is
impossible to admit an additional operator into the
sorting areas, there does not seem to be an acute space
or capacity problem for other air-side operations. On
the day of the Commission’s visit, space could easily
have been made for additional equipment, especially on
the western part of the apron. Even at the calmest time
of the day, i.e. when the equipment was not in use and
parked, it was clear that these parking areas were far
from crowded. Moreover, the current layout of those
areas is temporary and it should be possible to make
more space available from spring 2000 when the
aircraft positions on the west side of
the apron are
rearranged. Apart from this improvement, according to
the
recommended by the
International Civil Aviation Organisation (ICA), (cid:145)nose-in(cid:146)
parking of aircraft allows groundhandling equipment to
be parked between the noses of aircraft, notably around
positions 2-4, A06-A04 and A01-A03. The Portuguese
authorities have therefore failed to demonstrate that it is
impossible to recognise the right
to self-handle in
accordance with the provisions of the Directive.

standards and practices

(37)

The lack of computer equipment at the desks currently
used by TRIAM is certainly a drawback for users but
does not rule out the admission of a new operator. The
decision to self-handle or not is an economic one for
each user to take once he has weighed up all
the
advantages and disadvantages of operating such services,
including the airport’s equipment problems.

Freight handling

(41) A new terminal has recently been built. This terminal
covers 450 m2 (350 m2 of which is for operations and
100 m2 for offices) and is currently occupied by TAP. It

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representing only 5 % of

is divided into two parts, for imports and exports, each
having a single access door to the runway. TAP is the
airport’s only operator for freight services and over 95 %
of its business relates to self-handling. Services to third
parties,
traffic, need not
necessarily be opened up until the airport reaches the
threshold of two million passengers a year, as provided
for in the Directive. It is unlikely that any operator will
apply to self-handle for a mere 1 or 2 % of
traffic.
However, in line with Article 9 of the Directive, it must
is impossible to accommodate a
it
be proved that
second operator who would be
space
proportional
It does not appear
impossible to find such a space in the building as the
need is very small. However, the arrangement of the
doors would not seem to allow a second operator to
enter and leave efficiently. Furthermore, the layout and
size of the offices earmarked for the staff in the building
would rule out a second operator.

to its freight traffic.

allocated

The Portuguese authorities’ dossier also claims that the
maintenance sheds and rest rooms are cramped. Firstly,
these buildings are very new and should have been
designed with enough space to take account of
the
requirements of the Directive. Secondly, an examination
of the areas allocated shows that TAP has 2 000 m2 of
space on the apron to park its equipment and 400 m2
to maintain it; this enables it to handle 70 % of the
traffic without major difficulty. For the remaining 30 %,
TRIAM has 200 m2 on the apron and half of
the
maintenance
The
installations allocated to TRIAM could therefore be
regarded as generous in relation to the volume of traffic
handled and so it has not been proven that space could
not be found for a new operator.

installations

rooms.

and

rest

5. Plan of appropriate measures

In accordance with the provisions of Article 9(2) of the
Directive,
submitted by the Portuguese
authorities identifies a plan of appropriate measures to
overcome the constraints cited.

the dossier

This plan is part of the comprehensive airport extension
in response to growing traffic, designed to
project
it should
improve access to the island of Madeira;
aircraft
eventually
on
intercontinental
accommodated with
improved safety conditions.

capacity

to be

flights

larger

allow

(42)

(43)

(44)

accompanied by an extension of
the apron and an
increase in the number of positions from nine to 14,
including four positions for large-capacity aircraft. This
extension and the new positions will of course allow
more space for loading and unloading operations and
almost 7 000 m2 of new space for parking equipment.
Space restrictions will not enable the terminal service
road to be doubled up, however. On the other hand, the
plan includes a major extension of
the terminal,
including a new baggage sorting hall and a check-in hall
of some 4 400 m2, with 40 fully computerised check-in
desks. A 1 250 m2 vehicle maintenance building and a
3 000 m2 covered area for freight will also be built.

6. Compliance with the criteria set out in Article

9(2) of the Directive

(46) Article 9 of the Directive states that an exemption may
be granted only where space and/or capacity constraints
make it impossible to open up the market to the extent
provided for by the Directive. The Commission’s
examination shows that this is indeed quite impossible
regards baggage sorting and transport activities
as
owing to the cramped premises which already make
working with two companies very difficult and lack
sufficient space for any additional operator. The same
applies to freight and mail handling activities, where the
layout of the premises and inadequate office space for
staff would not allow for an additional operator at
present. On the other hand, this has not been proved to
be impossible for other services, either because simple
discomfort is not sufficient reason or because the reason
given is not related to the number of operators. The
scope of
exemption is
therefore broader than necessary.

the Portuguese authorities’

(47) As regards the duration of the exemption, the space
needed to allow the Directive to be applied in areas
where constraints have been observed cannot be made
available before the new baggage sorting hall opens in
late 2000. Similarly, the plan of measures submitted
includes a covered freight area around the same time.
The exemption therefore appears to comply with the
principles of Article 9(2) in this respect.

7. Conclusion

(45)

The project consists
firstly of an extension to the
runway on piles and a change of orientation to avoid
having to build in too deep water. This will be

(48)

Traffic at Funchal airport
is growing fast, requiring
major work in order to be able to handle safely all types
including large-capacity ones, and also to
of aircraft,
the problems
handle passengers properly. However,

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with checking in passengers are caused by the cramped
hall and not by a particular problem with the check-in
desks or staff. Sufficient space can be freed on the apron
to enable an additional user to self-handle for air-side
operations, especially when the western side has been
reorganised in the early part of 2000.

On the other hand, in view of the cramped premises it
is impossible to accept an additional operator in a space
where the two suppliers’ equipment already has great
difficulty manoeuvring
and
for
transport operations. According to the Commission’s
examination, it would also be impossible to have a new
operator in the freight shed at the moment,

baggage

sorting

HAS ADOPTED THIS DECISION:

Article 1

The exemption granted by the Portuguese Republic for Funchal
airport, as notified to the Commission on 11 October 1999,

must be limited to the operations defined in points 3, 4 and
5.4 of the Annex to the Directive as regards baggage transport
between aircraft and the airport buildings.

Article 2

The Portuguese 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 Portuguese Republic.

Done at Brussels, 10 January 2000.

For the Commission

Loyola DE PALACIO

Vice-President