2000/124/EC: Commission Decision of 10 January 2000 on the application of Article 9 of Council Directive 96/67/EC to Oporto (Francisco Sá Carneiro) (notified under document number C(1999) 5196) (Text with EEA relevance) (Only the Portuguese text is authentic)
Date: 2000-01-10
Institutions: European Commission
Subjects: Northern Portugal, airport, market access, provision of services, transport infrastructure, works contract

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COMMISSION DECISION

of 10 January 2000

on the application of Article 9 of Council Directive 96/67/EC to Oporto (Francisco SÆ Carneiro)

(notified under document number C(1999) 5196)

(Only the Portuguese text is authentic)

(Text with EEA relevance)

(2000/124/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

(3)

In accordance with Article 9(5) of the Directive, the
Commission consulted the Portuguese Government on
its draft evaluation on 3 December 1999.

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,

(4)

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

After consulting the Advisory Committee,

Whereas:

1. Scope of the exemption notified by the

Government of Portugal

1.1. Notification by the Portuguese authorities

By letter registered by the Commission on 11 October
1999, the Portuguese authorities notified a request to
approve the decision of the Portuguese Government to
to Oporto (Francisco SÆ Carneiro) airport an
grant
exemption to limit
the number of users
authorised to self-handle for the categories of services
listed under point 2 of the Annex to the Directive.

to four

This exemption is granted, on the basis of Article
9(1)(d) of the Directive, until 31 August 2001.

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,

(1)

(2)

Basis of the exemption

The general rules for access to the groundhandling
services market are set out in Articles 6 and 7 of the
Directive. These provisions clearly state the principle
that most categories of groundhandling services should
be opened up to the maximum possible extent. For an
airport with a volume of traffic like that of Oporto, the
Directive provides
to
self-handle as from 1 January 1998.

recognition of

the right

for

space and capacity constraints prevent

(5) Article 9 of Council Directive 96/67/EC also takes
account of the fact that, in certain very special cases,
severe
the
opening-up of the market to the degree provided for. In
such cases, exemptions may be granted on a temporary
basis
time to overcome the
constraints. These exemptions can therefore be only
exceptional
intended to
automatically give airports an extra transitional period
in addition to that already provided for in Article 1 of
the Directive.

to give the airports

and are not

in nature

(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).

1.2. Presentation of the airport

and has one passenger

(7) Oporto airport covers a total surface area of 319
hectares
at
the
runway
southernmost
3 480 metres long. The terminal has a capacity of
3 million passengers per year which allows no gate

terminal
north/south

point

of

a

(1) OJ L 272, 25.10.1996, p. 36.
(2) OJ C 337, 25.10.1999, p. 5.

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

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freight

parking. The
capacity of
40 000 tonnes with a surface area of 8 700 m2 for
handling operations plus 2 200 m2 of office space.

terminal has

a

(8) A total of 2,3 million passengers used the airport in
1997 (2,7 million in 1998), principally on scheduled
(87 %) and international (78 %) flights. Traffic forecasts
suggest average annual growth of around 6 % over the
next five years.

1.3. Situation regarding handling at Oporto airport

(9) With between 2 and 3 million passengers and 75 000
tonnes of freight, the opening-up of the market does
not apply to services for third parties before 1 January
2001. Most of these services are provided by TAP, with
the exception of freight handling, which is dealt with by
a second supplier at the airport. However, these freight
operations account for only 1 % of movements at the
airport.

(10) On the other hand, the Directive provides for the right

to self-handle with effect from 1 January 1998.

(11) As regards self-handling, two users (TAP and Portugalia)
have been given authorisation on the airside. On the
groundside and, in particular, for the passenger handling
covered by
airlines (cid:151) TAP,
Portugalia, KLM and GB Air (cid:151) currently effectively
exercise their self-handling rights. Normally, however,
for unlimited recognition of
the Directive provides
self-handling rights for these services.

this Decision four

2. Constraints referred to by the Portuguese

authorities

(12)

traffic at

The file presented by the Portuguese authorities shows a
major lack of space for passengers checking in.
In
particular,
is irregular and the
the airport
departure hall totals just 500 m2 with only 18 check-in
counters. As a result, in peak traffic periods, particularly
during the traditional summer, Christmas and Easter
holidays,
is completely overcrowded with
passengers waiting to check in. To add to the
congestion, most of them have several items of baggage
to register and are accompanied by relatives.

the hall

(13) According to the file submitted by the Portuguese
three counters per flight,
authorities, an average of
including one specially for business class passengers,
would be needed for high-quality check-ins. According
to the Portuguese authorities, it is therefore very difficult
to maintain a high quality of service during peak traffic
periods.

(14)

Studies by the airport have shown that traffic levels
would require 24 check-in counters from 1998 on and
26 in 1999. These figures are based on the counters
remaining open for an average of 90 minutes for each
flight, on the current growth of 6 % per year and on the
assumption that there must be two check-in counters
for category A aircraft (up to 160 passengers) three for
category B (between 161 and 300) and four
for
category C (over 300).

(15) According to the Portuguese authorities, the objective of
striking a balance between traffic growth at the airport
and maintaining high-quality groundhandling services
this
rules out admission of any new operators of
category of services at the moment.

3. Reactions of the interested parties

(16)

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

One carrier has remarked that it is impossible in the
short term to open up completely the services covered
by the exemption.

4. Evaluation of the exemption in the light of the

provisions of Directive 96/67/EC

4.1. The rules in force concerning groundhandling

4.1.1. The scope for limiting access to the market

(17) Directive 96/67/EC provides

for

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

the market

traffic at

(18)

The general rules governing groundhandling for the
categories of service listed in the notification from the
Portuguese authorities are set out in Article 7(1) of the
Directive. Those rules have been included in the
Decree-Law transposing the Directive into Portuguese
law (4). The Directive provides for passenger handling

(4) Decree No 275/99, DiÆrio da Repœblica - 23.7.99 - Series-A No

170, p. 4588.

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services
to be opened up, without
self-handling by carriers operating at the airport.

restriction,

for

factors and must, moreover, be in proportion to the
aims pursued.

(19) However, where specific space or capacity constraints
in particular, from the area utilisation rate or
arising,
congestion make it impossible to authorise self-handling
to the degree provided for by the Directive, the Member
State in question may, on the basis of Article 9(1)(c),
reserve self-handling to a limited number of airport
users; these must be chosen on the basis of relevant,
transparent and non-discriminatory criteria.
objective,
On this basis,
the
in accordance with Article 23 of
Portuguese Decree-Law transposing the Directive (5), the
Portuguese authorities decided to limit self-handling at
Oporto airport to four users.

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

(cid:151) specify the

category or

categories of ground
handling services
exemption is
granted and the specific constraints of available
space or capacity which justify it,

for which the

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

to overcome the constraints.

(23)

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

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

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

(cid:151) extend further than necessary.

4.1.2. Procedure

(22) As

stated in its

Frankfurt and Dusseldorf (8),
direct its examination towards:

two decisions on the airports at
the Commission must

(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 appropriate measures to overcome the

constraints

(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.

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, 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 (9).

the Court of

Justice of

the

(21) As stated by the Commission, inter alia, in its decisions
of 14 January 1998 on Frankfurt and D(cid:252)sseldorf
airports (6), the main aim of the Directive is to liberalise
groundhandling services. The restrictions imposed on
third parties are restrictions on those parties’ freedom to
provide such services or
to
self-handle. By analogy with State measures restricting
the freedom to supply services (7), measures likely to
restrict or prohibit the activities of service suppliers or,
in the present
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
and not by economic
public-interest

to exercise their

requirements

instance,

right

(5) Decree No 275/99, DiÆrio da Repœblica - 23.7.99 - Series-A No

170, p. 4588.

(6) Commission decisions of 14 January 1998, OJ L 173, 18.6.1998,

p. 32.

(24)

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

(25)

In accordance with Article 9(4) of the Directive, the
Commission has made a detailed analysis of the alleged
space and capacity constraints, has considered whether
the decision taken by the Portuguese authorities is
appropriate to those constraints, and has appraised the
measures put forward to overcome them. It based its
examination on the file submitted by the Portuguese
authorities, on the visit it made to Oporto airport on 5
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.

(7) 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.

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

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4.2. Examination of the constraints referred to by the

Portuguese authorities

number of operators. There is therefore no need to
allocate counters permanently to particular airlines.

(28)

(29)

(30)

(26) At

the moment Oporto airport has a rectangular
terminal with a declared capacity of 3 million
passengers per year. With 2,7 million passengers carried
in 1997, this capacity limit should soon be reached. The
strong growth at this airport will force it to produce an
ambitious expansion plan. As an airport serving holiday
destinations, it has to handle traffic concentrated heavily
around the peak season. The terminal has 18 check-in
counters, six of which are allocated permanently to TAP
and two to Portugalia. These two airlines also use
additional counters as and when needed.
In addition,
KLM and GB Air temporarily rent check-in counters to
self-handle their own flights. Self-handling by these four
users caters for approximately 70 % of the traffic. The
airport has no gate parking and all boarding is via the
apron.

(27)

Passenger handling services for third parties are, in turn,
currently provided solely by TAP. Like Portugalia, this
airline uses the counters permanently allocated to it first
and then, if necessary, additional counters. As a result,
the arrival of a new supplier would affect only services
of this kind by TAP, the sole supplier to third parties.
According to the Portuguese authorities, the conditions
for these services are far from satisfactory at peak
periods and there is no doubt that saturation point is
reached at certain times. However, the problem is that
the 500 m2 departure hall is too small to cope with all
the passengers waiting to check in at peak times and
that there are not enough check-in counters. However,
this is not related to the company providing check-in
services, whether one of the current self-handling users
or a new arrival.

There is no joint checking-in at Oporto airport, either
for self-handled flights or for the flights handled for
third parties by TAP, i.e. it is not possible to check in at
any of the airline’s counters, as can be done at some
airports. Separate counters are opened for each flight
two hours before take-off or even three in the case of
charter flights. Passengers may check in at the allotted
counters only, with the sole exception of TAP’s business
class counter. The airline does not move on to the next
flight until check-in for the previous flight is closed.
Last-minute check-ins are possible at any time at the
business class counter. If the counters are opened by
flight, as is the current practice,
the
groundhandling suppliers bears no relation, in principle,
to the saturation of
the check-in hall. Saturation is
actually linked to the number of flights rather than the

the quality of

It must be checked whether,
in practice, the overlap
between certain flights could create particular problems
if new operators were present. This cannot be ruled out
since at the moment all flights handled for third parties
are dealt with by TAP. However, even where flights
overlap, TAP provides groundhandling services and
operates its own flights at the same time at different
counters. In practice, use of these counters for the same
flights but by self-handling airlines poses no particular
problem.

service need not be

taken into
The quality of
consideration unless other users or operators
are
affected. Here, however, the lack of space has nothing
to do with the number of check-in operators. The
services provided by any airline wishing to self-handle
concern only the airline in question, since it handles
only its own aircraft.

The Commission bases its appraisal on the worse case
scenario at the airport, i.e. the busiest day of the busiest
month of the year.
In 1998 this was 19 December,
when 16 369 passengers checked in here. It must be
added that passenger numbers exceeded 10 000 on only
five days in 1998. Examination of the flight schedules
shows that on the busiest day of the year there was a
shortage of counters at around 09.00 and midday.
However, on the one hand this problem already exists
and the arrival of a new operator would have no direct
impact at these particular times because there is no joint
checking-in and, on the other, this situation is the direct
result of having to handle charter
this
particular time. The allocation rules place an obligation
to handle scheduled flights within
on the airport
free to regulate the
specified periods but
to ensure more
check-in times
efficient management of the counters.
In practice, all
these charter flights are occasional flights accepted by
the airport case by case and on which conditions may
be imposed, particularly with regard to check-in times.
Examination of the flight schedules shows that slots are
available for flights at certain times of the day and that
rescheduling of charter flights to those times would
avoid problems of
type. The airport cannot,
therefore, invoke a problem which it has the power to
resolve itself.

for charter

flights at

leave it

flights

this

(31) Analysis of the check-in counters in turn shows that six
of the 18 counters are allocated permanently to TAP

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and two permanently to Portugalia. These two airlines
also use other counters as and when needed, as do GB
Air and KLM. This mobility shows that there are no
particular compatibility problems with the computer
system used and that
the arrival of a new operator
would pose no problem in this respect.

9 of the Directive to justify an exemption,
necessary to examine in closer detail
proposed by the airport in order to overcome them.

it is not
the measures

(39)

Likewise, since there are no genuine constraints it is
pointless to examine whether the action is in proportion
to the aims, as specified by Article 9(2) of the Directive.

(32)

(33)

(34)

(35)

(36)

the

submitted

the
Portuguese
Similarly,
by
file
any particular
authorities makes no mention of
problems with offices
staff.
for
Inspection on-the-spot confirmed that space could be
made available in the baggage-sorting hall
just behind
the check-in counters, next to that occupied by other
operators.

and rest

rooms

Finally, the Portuguese authorities stated that the work
planned to expand the terminal should not affect the
current check-in arrangements.

Portuguese

The
to
demonstrate that it is impossible to open up the market
to the extent required by the Directive.

authorities

failed

have

thus

4.3. Plan of appropriate measures

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

authorities presented

Portuguese

the

These measures form part of an extensive, more general
renovation and expansion plan to enable the airport to
cope with the increase in traffic,
in particular by
building a new taxiway and new aircraft positions and
doubling the number of floors in the terminal building
so that
the arrival and departure areas can be kept
separate.

5. Conclusion

(40)

that Oporto airport

The Commission recognises
is
particularly overcrowded at certain times and that a
development plan has been adopted to overcome this.
In particular, it recognises that the baggage registration
area is too small at certain peak periods, making it
extremely difficult to cope with the large number of
passengers all checking in at
the same time for
scheduled and charter flights. On the other hand, since
the problem is the hall and not the check-in counters
themselves and could be partly resolved by better
scheduling of the flights, it has not been demonstrated
that an increase in the number of users carrying out
self-handling would lead to a deterioration in check-in
operations and that opening-up to other users would be
impossible, as defined in Article 9 of the Directive,

HAS ADOPTED THIS DECISION:

Article 1

The exemption granted to Francisco SÆ Carneiro Airport in
Oporto on the basis of Article 9(1)(c) of the Directive, as
notified to the Commission on 11 October 1999, fails to meet
the Directive.
laid down in Article 9 of
the conditions
Consequently,
the
may
Portugal
abovementioned decision.

implement

not

the plan is

(37) As regards the groundhandling services covered by this
to double the number of
exemption,
check-in counters and to expand the departure hall, to
create a new departure terminal for baggage allowing
100 % screening of baggage and to build five gates with
walkways adjustable to aircraft of all types. According to
the Portuguese authorities these measures should make
it possible to cope with traffic growth and to overcome
the constraints mentioned. They should also make it
possible to open up the groundhandling market
in
2001, as provided for by Article 1(2) of the Directive.

(38) However, since the constraints cited by the Portuguese
authorities have not been proven, as required by Article

Article 2

This Decision is addressed to the Portuguese Republic.

Done at Brussels, 10 January 2000.

For the Commission

Loyola DE PALACIO

Vice-President