CELEX: C2001/118/25
Language: en
Date: 2001-04-21 00:00:00
Title: 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

21.4.2001               EN                     Official Journal of the European Communities                                       C 118/15
Question 3                                                                      (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
Is the financial activity of a company whose annual revenue is                        first sentence of Article 11(1) of the TIR Convention
far higher than that produced by the activity which is its                            or the two-year time-limit in Article 455(2) of that
principal object, according to its statutes, to be regarded as                        regulation in conjunction with the first sentence of
‘incidental’ for the purposes of Article 19(2) of the Sixth                           Article 11(2) of the TIR Convention apply?
Directive?
                                                                                (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
(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                                      under tender of evidence that the irregularity was
    harmonization of the laws of the Member States relating to
    turnover taxes — Common system of value added tax: uniform                        actually committed in another Member State within
    basis of assessment (OJ 1977 L 145, p. 1).                                        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
Reference for a preliminary ruling from the Bundesge-                           customs debtor within the meaning of Article 203(3) of
richtshof by order of that court of 11 January 2001 in the                      Regulation No 2913/92, by requesting another Member
case of Bundesverband Güterkraftverkehr und Logistik                            State for administrative assistance in ascertaining the facts
(BGL) e.V., intervener: Préservatrice Foncière Tiard,                           (see Council Regulation (EEC) No 1468/81 of 19 May
Société anonyme d’assurances de droit français, v Federal                       1981 (3))?
Republic of Germany, represented by Hauptzollamt Frie-
                            drichshafen                                   (b) If the answer to Question 2(a) is in the affirmative,
                                                                                (aa) If such an investigative obligation is infringed, is the
                          (Case C-78/01)                                              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
                         (2001/C 118/24)                                              was detected?
                                                                                (bb) Must the Member State which has detected the
Reference has been made to the Court of Justice of the                                irregularity, when claiming against the guaranteeing
European Communities by an order of the Bundesgerichtshof                             association, demonstrate and prove that such an
(Federal Court of Justice) of 11 January 2001, which was                              investigative obligation has been complied with?
received at the Court Registry on 15 February 2001, for a
preliminary ruling in the case of Bundesverband Güterkraftver-            (1) OJ L 253, 11.10.1993, p. 1.
kehr und Logistik (BGL) e.V., intervener: Préservatrice Foncière          (2) OJ L 302, 19.10.1992, p. 1.
Tiard, Société anonyme d’assurances de droit français, v                  (3) OJ L 144, 2.6.1981, p. 1.
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                 Appeal brought on 17 February 2001 by Aéroports de
      Regulation (EEC) No 2913/92 of 12 October 1992                      Paris against the judgment delivered on 12 December
      establishing the Community Customs Code (2), for fur-               2000 by the Third Chamber of the Court of First Instance
      nishing proof of the actual place of an irregularity apply          of the European Communities in Case T-128/98 between
      also where a Member State, pursuant to Article 454(2)               Aéroports de Paris and the Commission of the European
      and the first and second subparagraphs of Article 454(3)                 Communities, supported by Alpha Flight Services
      of Regulation No 2454/93, brings proceedings against
      the guaranteeing association for the payment of duties,                                       (Case C-82/01 P)
      and the association wishes to prove in those proceedings
      that the place where the irregularity was actually commit-                                    (2001/C 118/25)
      ted is situated in another Member State?
                                                                          An appeal against the judgment delivered on 12 December
(b) If the answer to Question 1(a) is in the affirmative:                 2000 by the Third Chamber of the Court of First Instance
 ---pagebreak--- C 118/16               EN                   Official Journal of the European Communities                                        21.4.2001
of the European Communities in Case T-128/98 between                   —     Breach by the Court of First Instance of the rights of the
Aéroports de Paris and Commission of the European Com-                       defence.
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                 —     The Court of First Instance failed to respond to the plea
H. Calvet, Advocat, with an address for service in Luxembourg.               in law put forward by Aéroports de Paris in respect of
                                                                             self-handling and handling provided for third parties.
The appellant claims that the Court should:
                                                                       —     The Court of First Instance distorted the evidence adduced
                                                                             before it when analysing the services in question.
—     set aside the judgment of 12 December 2000 dismissing
      its application;
                                                                       —     The Court of First Instance manifestly distorted national
                                                                             law in holding that the appellant’s activities did not form
—     uphold the pleas in law put forward by ADP at first                    part of the exercise of a task conferred by public law.
      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        —     The Court of First Instance infringed Article 86 in
      public institution to bring the infringement to an end                 holding that the appellant is an undertaking: according to
      within two months of notification of that decision;                    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
—     order the Commission to pay all the costs borne by the                 the concept of ‘essential facilities’ cannot remove from
      applicant in the proceedings before the Court of First                 the administration of public assets the prerogatives
      Instance and also in the present appeal;                               conferred by public law that are attached to it. Further-
                                                                             more, the appellant had demonstrated that it was never
—     order AFS to bear its own costs in the proceedings before              necessary to have the benefit of an agreement for the
      the Court of First Instance and also, should it submit a               private occupation of publicly-owned property, in return
      statement in intervention in the present appeal, to bear               for which the fees at issue are levied, in order to provide
      its own costs in that regard and also those incurred by                groundhandling services at the Paris airports.
      ADP in connection with that intervention;
                                                                       —     The Court of First Instance infringed Article 86 as regards
                                                                             the definition of the market: since (i) the fees at issue were
In the alternative
                                                                             levied in return for the private occupation of publicly-
                                                                             owned property and (ii) the private occupation of pub-
—     set aside the judgment of the Court of First Instance of               licly-owned property is not necessary to the provision of
      12 December 2000 dismissing the action brought by                      groundhandling services, the Court could not hold that
      ADP and refer the case back before a Chamber of the                    the relevant market was the market ‘in management
      Court of First Instance composed of different judges                   services at the Paris airports’ covering ‘the conditions of
      from those composing the Chamber that delivered the                    access to airport installations’.
      judgment under appeal;
                                                                       —     The Court of First Instance infringed Article 86 in holding
—     reserve the decision as to costs and refer the question as             that the applicant occupied a dominant position.
      to costs to the Chamber that will adjudicate on the case.
                                                                       —     The Court of First Instance, while further distorting the
                                                                             function of the fee for the occupation of publicly-owned
Pleas in law and main arguments                                              property, infringed Article 86 in comparing the fees paid
                                                                             to the applicant by AFS and OAT.
—     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
                                                                       (1) Regulation No 17 of the Council of 6 February 1962: First
      No 17/62 and not that of Regulation No 3975/87. The                  Regulation implementing Articles 85 and 86 of the Treaty (Official
      activity of groundhandling forms an integral part of the             Journal, English Special Edition 1962, p. 87).
      air transport system. In holding that the appellant oper-        (2) Council Regulation (EEC) No 3975/87 of 14 Decembre 1987
      ates on an ‘upstream market’, the Court of First Instance            laying down the procedure for the application of the rules on
      failed to appreciate the inseverable link between                    competition to undertakings in the air transport sector (OJ 1987
      groundhandling services and the airports on which those              L 374, p. 1).
      services are provided.
—     Breach by the Court of First Instance of the obligation to
      state reasons.