Aéroports de Paris v Commission of the European Communities.
Date: 2002-10-24
17 On 11 June 1998, the Commission adopted [the contested decision], which states:
"Article 1
[ADP] has infringed Article 86 of the EC Treaty by using its dominant position as manager of the Paris airports to impose discriminatory commercial fees in the Paris airports of Orly and Roissy-Charles de Gaulle on suppliers or users engaged in groundhandling or self-handling activities relating to catering (including the loading and unloading of food and beverages on aircraft), to the cleaning of aircraft and to the handling of cargo.
Article 2
[ADP] shall put an end to the infringement referred to in Article 1 by applying to the suppliers of groundhandling services concerned a non-discriminatory scheme of commercial fees within two months of the date of notification of this Decision."'
The contested judgment
3 On 7 August 1998, ADP brought an action for annulment of the contested decision before the Court of First Instance.
4 By the contested judgment, the Court of First Instance rejected ADP's various pleas in law alleging, first, procedural irregularity; second, breach of the rights of defence; third, failure to comply with the obligation to state reasons; fourth, infringement of Article 86 of the EC Treaty; fifth, infringement of Article 90(2) of the EC Treaty (now Article 86(2) EC); sixth, infringement of Article 222 of the EC Treaty (now Article 295 EC) and seventh, misuse of powers.
The appeal
5 In its appeal, ADP claims that the Court should:
- primarily:
- set aside the contested judgment;
- allowing ADP's claim at first instance, annul the contested decision;
- order the Commission to pay all costs borne by the applicant in the proceedings before the Court of First Instance and in the present appeal;
- order AFS to bear its own costs in the proceedings before the Court of First Instance and, 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 contested judgment 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 costs and refer the question of costs to the chamber of the Court of First Instance that will adjudicate in the case.
6 The Commission contends that the Court should:
- declare the appeal inadmissible for infringement of Article 112 of the Rules of Procedure;
- in the alternative, declare inadmissible and, in any case, reject the second, third, and fifth to ninth pleas in law and reject the first, fourth and tenth pleas in law;
- accordingly, dismiss the appeal and
- order the appellant to pay the costs.
7 AFS contends that the Court should:
- dismiss the application for annulment of the contested decision brought by ADP;
- order ADP to bear all costs of the present proceedings.
Admissibility
8 The Commission submits that the appeal is inadmissible in its entirety on the ground that ADP refers on several occasions to documents which, whilst annexed to the application lodged before the Court of First Instance, were not annexed to the appeal. That being so, ADP failed to comply with Articles 112 and 37 of the Rules of Procedure of the Court of Justice.
9 On that point, it should be noted that Article 112(1) and (2) of the Rules of Procedure set out the requirements to be complied with on an appeal. The second subparagraph of Article 112(1) provides in particular for the application of Article 37, the second subparagraph of paragraph (1) of which provides, inter alia, that every pleading must be `accompanied by all annexes referred to therein' and paragraph (4) of which provides that `[t]o every pleading there shall be annexed a file containing the documents relied on in support of it, together with a schedule listing them'.
10 However, nowhere do the Rules of Procedure provide that failure to comply with the requirements of Article 37(1) and (4) thereof renders the appeal inadmissible.
11 Moreover, no evidence has been adduced before the Court to show that the Commission or AFS have been prejudiced by the fact that the documents to which the appeal refers were not annexed to it, and it is common ground that those documents were known to the parties since they were annexed to the application lodged before the Court of First Instance.
12 The defect pleaded by the Commission is not therefore sufficient to render the appeal inadmissible (see, to that effect, Case C-91/95 P Tremblay and Others v Commission [1996] ECR I-5547, paragraph 11).
13 For those reasons the Commission's claim that the Court should dismiss the appeal as being inadmissible in its entirety is rejected.
Substance
The first plea in law, alleging infringement of Regulation No 17 and Regulation (EEC) No 3975/87
14 ADP submits that the Court of First Instance erred in law in holding, at paragraphs 34 to 52 of the contested judgment, that the Commission had been right in finding that Regulation No 17 and not Council Regulation (EEC) No 3975/87 of 14 December 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) applied in the present case. ADP claims that none of the grounds of the contested judgment justifies calling into question the removal of the whole of the transport sector from the scope of Regulation No 17 and the correlative application of Regulation No 3975/87 to that sector.
15 ADP bases that plea, first, on the judgment in Case C-264/95 P Commission v UIC [1997] ECR I-1287, in which the Court of Justice held, at paragraph 44, that `the whole of the transport sector' had been removed from the scope of Regulation No 17 by Regulation No 141 of the Council of 26 November 1962 exempting transport from the application of Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291). Consequently, Regulation No 3975/87, which replaced Regulation No 141, applies to the whole of the transport sector, of which ADP's activity undeniably forms part.
16 In that regard, it should be noted that, at paragraph 44 of the judgment in Commission v UIC, cited above, the Court examined the question whether a clause prohibiting travel agents from favouring, in their advertising, proposals or advice to the public, means of transport in competition with rail fell within the scope of Regulation No 17 or of Regulation (EEC) No 1017/68 of the Council of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302), Article 1 of which refers, inter alia, to all agreements `which have as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport, the sharing of transport markets'. In holding that such a clause concerning the detailed rules applicable to the marketing of transport services by travel agents falls within Regulation No 1017/68 and not Regulation No 17, the Court pointed out that the whole of the transport sector had been removed from the scope of Regulation No 17 by Regulation No 141.
17 It cannot therefore be inferred from paragraph 44 of the judgment in Commission v UIC, cited above, that the activity of an airport manager such as that carried out by ADP necessarily falls within the transport sector in the sense contemplated in that judgment.
18 Moreover, the interpretation that the activity carried on by ADP is not excluded from the scope of Regulation No 17 by Regulation No 141 is supported by the express wording of the latter regulation. Thus, in the first place, as the Court of First Instance noted at paragraph 56 of the contested judgment, the third recital of the preamble to Regulation No 141 explains that the distinctive features of transport make it justifiable to exempt from the application of Regulation No 17 only agreements, decisions and concerted practices `directly relating to the provision of transport services'. Second, Article 1 of Regulation No 141 precludes the application of Regulation No 17 only in respect of agreements `which have as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport or the sharing of transport markets'.
31 According to the case-law of the Court of Justice (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34), an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal. As may be seen from paragraph 29 of the present judgment, that requirement is satisfied in the present case and therefore the second plea is admissible.
38 As regards the admissibility of the third plea, as ADP rightly points out, it is clear from the case-law of the Court of Justice (see, in particular, Case C-64/98 P Petrides v Commission [1999] ECR I-5187, paragraphs 31 to 34) that failure by the Court of First Instance to have due regard for the rights of defence may be pleaded on appeal to the Court of Justice. The third plea is therefore admissible.
41 The statement in paragraph 126 of the contested judgment that the fact that HRS does not pay a fee is a further instance of discrimination is included merely for the sake of completeness. Complaints directed against the grounds of a judgment of the Court of First Instance included merely for the sake of completeness must be rejected outright since such grounds cannot provide any basis for setting that judgment aside (see, in particular, the order in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 47).
56 Finally, in response to the third objection as to the admissibility of the fifth plea, it must be pointed out that, according to the case-law of the Court of Justice, complaints based on findings of fact and on the assessment of those facts in the contested judgment are admissible on appeal where the appellant contends that the Court of First Instance has made findings which the documents in the file show to be substantially incorrect or that it has distorted the clear sense of the evidence before it (see, in particular, Case C-237/98 P Dorsch Consult v Commission [2000] ECR I-4549, paragraphs 35 and 36). That is precisely the situation in the present case.
63 None of those objections to admissibility can be upheld. First, as is made clear in paragraph 54 of the present judgment, failure to annex to an appeal a document already produced before the Court of First Instance cannot render pleas raised in support of appeal inadmissible. Second, the plea now under consideration indicates precisely the criticised elements of the contested judgment, and also the legal arguments specifically advanced in support of the application to annul that judgment, and so satisfies the requirements set out in the case-law cited at paragraph 31 of the present judgment. Third, it follows from the case-law cited at paragraph 56 of the present judgment that a complaint alleging misinterpretation of national law is admissible where, as in the present case, the Court of First Instance is alleged to have interpreted that law perversely.
67 In so far as the sixth plea is thus directed against a ground of the contested judgment which was included for the sake of completeness, it cannot, according to the case-law cited at paragraph 41 of the present judgment, result in that judgment being set aside and must therefore be rejected as irrelevant.
The seventh plea in law, alleging infringement of Article 86 of the Treaty by the Court of First Instance in characterising ADP as an undertaking
74 As regards the substance of the plea, as the Commission rightly submits, the fact that, for the exercise of part of its activities, an entity is vested with official powers does not, in itself, prevent it from being characterised as an undertaking within the meaning of Article 86 of the Treaty.
75 In that regard, it must be borne in mind that, in the field of competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, inter alia, Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637, paragraph 17). In order to determine whether the activities in question are those of an undertaking within the meaning of Article 86 of the Treaty, it is necessary to establish the nature of those activities (see, inter alia, Case C-364/92 SAT Fluggesellschaft [1994] ECR I-43, paragraph 19).
78 The Court of First Instance was thus entitled to find, at paragraph 121 of the contested judgment, that the provision of airport facilities to airlines and the various service providers, in return for a fee at a rate freely fixed by ADP, constitutes an economic activity.
79 It is settled case-law that any activity consisting in offering goods and services on a given market is an economic activity (see, inter alia, Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 36 and Case C-475/99 Glöckner [2001] ECR I-8089, paragraph 19).
81 In Bodson, cited above, the Court of Justice did not refer specifically to the existence of official powers precluding the applicability of Article 86 of the Treaty. In its judgment in SAT Fluggesellschaft, cited above, the Court held that, taken as a whole, the various activities of the entity concerned, by their nature, their aim and the rules to which they were subject, were connected with the exercise of powers which are typically those of a public authority and that none of those activities were separable from the others. That is not so in the present case.
82 Furthermore, contrary to ADP's argument, the Court of First Instance was right to point out, at paragraph 124 of the contested judgment, that according to the case-law of the Court of Justice, the fact that an activity may be exercised by a private undertaking amounts to further evidence that the activity in question may be described as a business activity.
118 On that point, it need only be observed that, as the Commission pointed out, that institution may in any event, upon its own initiative, find that there is an infringement of Articles 85 and 86 of the Treaty (see, inter alia, Joined Cases 32/78 and 36/78 to 82/78 BMW Belgium and Others v Commission [1979] ECR 2435, paragraph 18).