Case C-82/01 P: Appeal brought on 17 February 2001 by Aéroports de Paris against the judgment delivered on 12 December 2000 by the Third Chamber of the Court of First Instance of the European Communities in Case T-128/98 between Aéroports de Paris and the Commission of the European Communities, supported by Alpha Flight Services
Date: 2001-04-21
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), airport, dominant position, provision of services, public institution

21.4.2001

EN

Official Journal of the European Communities

C 118/15

Question 3

Is the financial activity of a company whose annual revenue is
far higher than that produced by the activity which is its
principal object, according to its statutes, to be regarded as
‘incidental’ for the purposes of Article 19(2) of the Sixth
Directive?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
harmonization of the laws of the Member States relating to
turnover taxes — Common system of value added tax: uniform
basis of assessment (OJ 1977 L 145, p. 1).

Reference for a preliminary ruling from the Bundesge-
richtshof by order of that court of 11 January 2001 in the
case of Bundesverband Güterkraftverkehr und Logistik
(BGL) e.V.,
intervener: Préservatrice Foncière Tiard,
Société anonyme d’assurances de droit français, v Federal
Republic of Germany, represented by Hauptzollamt Frie-
drichshafen

(Case C-78/01)

(2001/C 118/24)

Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesgerichtshof
(Federal Court of Justice) of 11 January 2001, which was
received at the Court Registry on 15 February 2001, for a
preliminary ruling in the case of Bundesverband Güterkraftver-
kehr und Logistik (BGL) e.V., intervener: Préservatrice Foncière
Tiard, Société anonyme d’assurances de droit
français, v
Federal Republic of Germany, represented by Hauptzollamt
Friedrichshafen on the following questions:

1.(a) Does the time-limit laid down in the first subparagraph
of Article 454(3) of Commission Regulation (EEC)
No 2454/93 of 2 July 1993 (1), implementing Council
Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code (2), for fur-
nishing proof of the actual place of an irregularity apply
also where a Member State, pursuant to Article 454(2)
and the first and second subparagraphs of Article 454(3)
of Regulation No 2454/93, brings proceedings against
the guaranteeing association for the payment of duties,
and the association wishes to prove in those proceedings
that the place where the irregularity was actually commit-
ted is situated in another Member State?

(aa)

In such a case does the one-year time-limit in the first
subparagraph of Article 454(3) and Article 455(1) of
Regulation No 2454/93 in conjunction with the
first sentence of Article 11(1) of the TIR Convention
or the two-year time-limit in Article 455(2) of that
regulation in conjunction with the first sentence of
Article 11(2) of the TIR Convention apply?

(bb) Does the time-limit for furnishing proof in the case
set out in Question 1(a) apply in such a way that the
guaranteeing association must submit its allegation
under tender of evidence that the irregularity was
actually committed in another Member State within
the time-limit and, if that is not done, is precluded
from offering that proof?

2.(a) Under Articles 454 and 455 of Regulation No 2454/93,
is the Member State which finds that an irregularity has
been committed in connection with a transport operation
under cover of a TIR carnet obliged as against the
guaranteeing association, in addition to the notifications
under Article 455(1) of that regulation and an enquiry to
the customs office of destination, to investigate where the
irregularity was actually committed and who is the
customs debtor within the meaning of Article 203(3) of
Regulation No 2913/92, by requesting another Member
State for administrative assistance in ascertaining the facts
(see Council Regulation (EEC) No 1468/81 of 19 May
1981 (3))?

(b)

If the answer to Question 2(a) is in the affirmative,

(aa)

If such an investigative obligation is infringed, is the
irregularity not deemed under the first subparagraph
of Article 454(3) of Regulation No 2454/93 to have
been committed in the Member State in which it
was detected?

(bb) Must the Member State which has detected the
irregularity, when claiming against the guaranteeing
association, demonstrate and prove that such an
investigative obligation has been complied with?

(1) OJ L 253, 11.10.1993, p. 1.
(2) OJ L 302, 19.10.1992, p. 1.
(3) OJ L 144, 2.6.1981, p. 1.

Appeal brought on 17 February 2001 by Aéroports de
Paris against the judgment delivered on 12 December
2000 by the Third Chamber of the Court of First Instance
of the European Communities in Case T-128/98 between
Aéroports de Paris and the Commission of the European
Communities, supported by Alpha Flight Services

(Case C-82/01 P)

(2001/C 118/25)

(b)

If the answer to Question 1(a) is in the affirmative:

An appeal against the judgment delivered on 12 December
2000 by the Third Chamber of the Court of First Instance

C 118/16

EN

Official Journal of the European Communities

21.4.2001

of the European Communities in Case T-128/98 between
Aéroports de Paris and Commission of the European Com-
munities, supported by Alpha Flight Services, was brought
before the Court of Justice of the European Communities on
17 February 2001 by Aéroports de Paris, represented by
H. Calvet, Advocat, with an address for service in Luxembourg.

The appellant claims that the Court should:

— set aside the judgment of 12 December 2000 dismissing

its application;

— uphold the pleas in law put forward by ADP at first
instance, namely: annul the Commission Decision of
11 June 1998 in which the Commission found that ADP
had infringed Article 86 of the EC Treaty and ordered the
public institution to bring the infringement to an end
within two months of notification of that decision;

— order the Commission to pay all the costs borne by the
applicant in the proceedings before the Court of First
Instance and also in the present appeal;

— order AFS to bear its own costs in the proceedings before
the Court of First Instance and also, should it submit a
statement in intervention in the present appeal, to bear
its own costs in that regard and also those incurred by
ADP in connection with that intervention;

In the alternative

— set aside the judgment of the Court of First Instance of
12 December 2000 dismissing the action brought by
ADP and refer the case back before a Chamber of the
Court of First Instance composed of different judges
from those composing the Chamber that delivered the
judgment under appeal;

— reserve the decision as to costs and refer the question as
to costs to the Chamber that will adjudicate on the case.

Pleas in law and main arguments

— Infringement of Regulations No 17/62 (1) and No
3975/87: (2) the Court of First Instance erred in law in
holding that the case fell within the scope of Regulation
No 17/62 and not that of Regulation No 3975/87. The
activity of groundhandling forms an integral part of the
air transport system. In holding that the appellant oper-
ates on an ‘upstream market’, the Court of First Instance
failed to appreciate
link between
groundhandling services and the airports on which those
services are provided.

inseverable

the

— Breach by the Court of First Instance of the obligation to

state reasons.

— Breach by the Court of First Instance of the rights of the

defence.

— The Court of First Instance failed to respond to the plea
in law put forward by Aéroports de Paris in respect of
self-handling and handling provided for third parties.

— The Court of First Instance distorted the evidence adduced

before it when analysing the services in question.

— The Court of First Instance manifestly distorted national
law in holding that the appellant’s activities did not form
part of the exercise of a task conferred by public law.

— The Court of First

Instance infringed Article 86 in
holding that the appellant is an undertaking: according to
Community Law, public persons whose activities depend
on the exercise of powers conferred by public law are not
undertakings. The use by the Court of First Instance of
the concept of ‘essential facilities’ cannot remove from
the administration of public assets the prerogatives
conferred by public law that are attached to it. Further-
more, the appellant had demonstrated that it was never
necessary to have the benefit of an agreement for the
private occupation of publicly-owned property, in return
for which the fees at issue are levied, in order to provide
groundhandling services at the Paris airports.

— The Court of First Instance infringed Article 86 as regards
the definition of the market: since (i) the fees at issue were
levied in return for the private occupation of publicly-
owned property and (ii) the private occupation of pub-
licly-owned property is not necessary to the provision of
groundhandling services, the Court could not hold that
the relevant market was the market ‘in management
services at the Paris airports’ covering ‘the conditions of
access to airport installations’.

— The Court of First Instance infringed Article 86 in holding

that the applicant occupied a dominant position.

— The Court of First Instance, while further distorting the
function of the fee for the occupation of publicly-owned
property, infringed Article 86 in comparing the fees paid
to the applicant by AFS and OAT.

(1) Regulation No 17 of the Council of 6 February 1962: First
Regulation implementing Articles 85 and 86 of the Treaty (Official
Journal, English Special Edition 1962, p. 87).

(2) Council Regulation (EEC) No 3975/87 of 14 Decembre 1987
laying down the procedure for the application of the rules on
competition to undertakings in the air transport sector (OJ 1987
L 374, p. 1).