1 The reference for a preliminary ruling concerns the interpretation of Articles 1, 6 and 7 of Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports (OJ 1996 L 272, p. 36) and Article 102 TFEU.
2 The request has been made in proceedings between the Regia Autonomă Aeroportul Internaţional ‘Avram Iancu’ Cluj (Autonomous Authority of ‘Avram Iancu’ Cluj International Airport; ‘the Autonomous Authority’) and the Consiliul Concurenţei (Competition Council, Romania) concerning an application for annulment of a decision by which the latter imposed a fine on the former for abuse of a dominant position.
3 Recitals 1, 2, 10 and 28 of Directive 96/67 are worded as follows: ‘(1) Whereas the [European] Community has gradually introduced a common air transport policy with the aim of completing the internal market in accordance with Article [26 TFEU] as a lasting contribution to promoting economic and social progress; (2) Whereas the objective of Article [56 TFEU] is to eliminate the restrictions on freedom to provide services in the Community; whereas, in accordance with Article [58 TFEU], that objective must be achieved within the framework of the common transport policy; … (10) Whereas free access to the groundhandling market must be introduced gradually and be adapted to the requirements of the sector; … (28) Whereas this Directive does not affect the application of the rules of the Treaty; whereas in particular the [European] Commission will continue to ensure compliance with these rules by exercising, when necessary, all the powers granted to it by Article [106 TFUE]’.
4 Article 1(1) to (3) of that directive, entitled ‘Scope’, provides: ‘1. This Directive applies to any airport located in the territory of a Member State, subject to the provisions of the Treaty, and open to commercial traffic in the following circumstances: (a) The provisions of Article 7(1) relating to categories of ground-handling services other than those referred to in Article 7(2) shall apply to any airport regardless of its volume of traffic as from 1 January 1998. (b) The provisions relating to the categories of groundhandling services referred to in Article 7(2) shall apply as from 1 January 1998 to airports whose annual traffic is not less than 1 million passenger movements or 25000 tonnes of freight. (c) The provisions relating to the categories of groundhandling services referred to in Article 6 shall apply as from 1 January 1999 to airports: - whose annual traffic is not less than 3 million passenger movements or 75000 tonnes of freight; or - whose traffic has been not less than 2 million passenger movements or 50000 tonnes of freight during the six-month period prior to 1 April or 1 October of the preceding year. 2. Without prejudice to paragraph 1, the provisions of this Directive shall apply as from 1 January 2001 to any airport located in the territory of a Member State, subject to the provisions of the Treaty, and open to commercial traffic, whose annual traffic is not less than 2 million passenger movements or 50000 tonnes of freight. 3. Where an airport reaches one of the freight traffic thresholds referred to in this Article without reaching the corresponding passenger movement threshold, the provisions of this Directive shall not apply to categories of groundhandling services reserved exclusively for passengers.’
5 Under Article 6(1) and (2) of Directive 96/67, entitled ‘Groundhandling for third parties’: ‘1. Member States shall take the necessary measures in accordance with the arrangements laid down in Article 1 to ensure free access by suppliers of groundhandling services to the market for the provision of groundhandling services to third parties. Member States shall have the right to require that suppliers of groundhandling services be established within the Community. 2. Member States may limit the number of suppliers authorised to provide the following categories of groundhandling services: - baggage handling, - ramp handling, - fuel and oil handling, - freight and mail handling as regards the physical handling of freight and mail, whether incoming, outgoing or being transferred, between the air terminal and the aircraft. They may not, however, limit this number to fewer than two for each category of groundhandling service.’
6 Under Article 7(1) of that directive, entitled ‘Self-handling’: ‘Member States shall take the necessary measures in accordance with the arrangements laid down in Article 1 to ensure the freedom to self-handle.’
7 Article 6(1) of Legea concurenței nr. 21/1996 (Law No 21/1996 on Competition) of 10 April 1996 (republished in the Monitorul Oficial al României, Part I, No 153 of 29 February 2016; ‘the Law on Competition’), provides: ‘Abuse by one or more undertakings of a dominant position on the Romanian market or in a substantial part of it shall be prohibited. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.’
8 Directive 96/67 was transposed into Romanian law by Ordinul Ministerului Transporturilor nr. 101 pentru aprobarea Reglementării aeronautice civile române privind accesul pe piața serviciilor de handling la sol pe aeroporturi - RACR-APSH, ediția 03/2007 (Decree of the Ministry of Transport No 101 approving the Romanian Civil Aviation Regulations on access to the groundhandling market at airports - RACR-APSH, edition 03/2007) of 9 May 2007 (Monitorul Oficial al României, Part I, No 334 of 17 May 2007).
9 Article 1(1) and (2) of Annex 1 to that decree provides: ‘1. These regulations apply to any airport located in the territory of Romania and open to commercial traffic in the following circumstances: … (c) the provisions relating to the categories of groundhandling services referred to in Article 6 shall apply to airports whose annual traffic is more than 2 million passenger movements or 50000 tonnes of freight. (2) Where an airport reaches one of the freight traffic thresholds referred to in this article without reaching the corresponding passenger movement threshold, the provisions of these regulations shall not apply to categories of groundhandling services reserved exclusively for passengers.’
10 Article 6 of that annex, entitled ‘Groundhandling for third parties’, provides in paragraph 1: ‘Airports shall take the necessary measures to ensure free access by suppliers of groundhandling services to the market for the provision of groundhandling services to third parties. With the approval of the Ministry of Transport, the airport may require suppliers of groundhandling services to be established within the Community.’
11 The Autonomous Authority is a legal person governed by Romanian law and, since 1997, has been under the direction of the Consiliul Județean Cluj (District Council of Cluj, Romania). That authority’s main activity is to provide passenger and/or cargo airlines and air passengers with access to the infrastructure of ‘Avram Iancu’ Cluj International Airport (‘Cluj airport’). It also provides undertakings that supply other kinds of services, such as groundhandling services, with access to airport infrastructure. In addition, the Autonomous Authority itself provides certain categories of groundhandling services to airlines operating in Cluj airport as well as commercial services linked to the airport’s activity.
12 In August 2016, Cluj airport exceeded the threshold of one million passenger movements recorded in a calendar year. On 21 September 2017, it exceeded the threshold of two million passenger movements.
13 In 2016, the Competition Council initiated an investigation following a complaint lodged by Romanian Airport Services SA (‘RAS’), a legal person governed by Romanian law, which had applied to become a supplier of groundhandling services at Cluj airport.
14 Following that investigation, the Competition Council found, by decision of 8 October 2019, that the Autonomous Authority had infringed Article 6(1) of the Law on Competition and Article 102 TFEU, in so far as it had abused its dominant position by refusing to grant RAS access to the airport infrastructure necessary for the provision of groundhandling services at Cluj airport between 11 September 2015 and 9 March 2017. The Autonomous Authority was fined 1 642 551.28 Romanian lei (RON) (approximately EUR 330420).
15 The Autonomous Authority sought the annulment of that decision before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania), which is the referring court, claiming, inter alia, that that decision was based on a misinterpretation and misapplication of Directive 96/67.
16 The Autonomous Authority submits that Article 6 of the Law on Competition and Article 102 TFEU cannot take precedence over the provisions of Directive 96/67, which is a lex specialis derogating from general competition law. It argues that, under that directive, it was entitled - until the threshold of two million passenger movements was reached - to organise the provision of groundhandling services at Cluj airport having regard only to security, technical and commercial constraints. Accordingly, it was not required to grant any applicant automatic access to airport infrastructure on the terms sought by that applicant.
17 The Competition Council, for its part, contends that Directive 96/67 is not a lex specialis in relation to Article 102 TFEU and that the possible application of that directive does not preclude the application of the rules of competition law.
18 In those circumstances, the Curtea de Apel Bucureşti (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must the provisions of [Directive 96/67], in particular Articles 1, 6 and 7 thereof, be regarded as precluding the application of Article 102 TFEU - and of any other rule having the same content - in situations concerning a refusal of access to the airport infrastructure necessary for the provision of groundhandling services at [EU] airports which have not reached the threshold of two million passengers?’
19 According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute in the main proceedings (judgment of 24 October 2024, Kwantum Nederland and Kwantum België, C‑227/23, EU:C:2024:914, paragraph 52 and the case-law cited).
20 In this case, it is apparent from the order for reference that, although the question referred for a preliminary ruling is concerned not only with Articles 1 and 6 of Directive 96/67 but also with Article 7 thereof, the dispute in the main proceedings does not relate to self-handling as covered by Article 7. The present dispute relates to the Autonomous Authority’s refusal to grant RAS - an undertaking providing groundhandling services - access to the infrastructure necessary to provide such services at Cluj airport. It should be noted that it is Article 6 of Directive 96/67 which governs groundhandling for third parties and that, under paragraph 1 of that article, Member States are to take the necessary measures in accordance with the arrangements laid down in Article 1 of that directive to ensure free access by suppliers of groundhandling services to the market for the provision of groundhandling services to third parties.
21 Against that backdrop, the Court takes the view that, by its single question, the referring court asks, in essence, whether Articles 1 and 6 of Directive 96/67 must be interpreted as precluding the application of Article 102 TFEU in circumstances where a supplier of groundhandling services has been refused access to the airport infrastructure, which is necessary for the provision of such services, of an EU airport whose annual traffic, on the date of that refusal, was less than two million passenger movements.
22 At the outset, it is apparent from recitals 1, 2 and 10 of Directive 96/67 that the aim of that directive is to eliminate restrictions on the freedom to provide services in the internal market by gradually liberalising the groundhandling market at EU airports.
23 With a view to achieving such gradual liberalisation, Article 1 of Directive 96/67 provides, in paragraph 1(c), that, as a first step, from 1 January 1999, Article 6 of that directive is to apply, inter alia, only to airports whose traffic has been not less than 2 million passenger movements or 50000 tonnes of freight during the six-month period prior to 1 April or 1 October of the preceding year. As a second step, Article 1 of Directive 96/67 provides, in paragraph 2, that without prejudice to paragraph 1, the provisions of that directive are to apply as from 1 January 2001 to any airport located in the territory of a Member State, subject to the provisions of the Treaty, and open to commercial traffic, whose annual traffic is not less than 2 million passenger movements or 50000 tonnes of freight. It is also apparent from paragraph 3 of that article that, where an airport reaches one of the freight traffic thresholds referred to in that article without reaching the corresponding passenger movement threshold, the provisions of Directive 96/67 are not to apply to categories of groundhandling services reserved exclusively for passengers.
24 It thus follows from Article 1 of Directive 96/67 that Article 6 thereof applies, as from 1 January 2001, only to EU airports whose annual traffic is not less than two million passenger movements.
25 According to the order for reference, in the present case, on the date of the Autonomous Authority’s refusal to grant RAS access to the infrastructure necessary to provide groundhandling services at Cluj airport, that airport had not reached the threshold of two million passenger movements laid down in Article 1(2) of Directive 96/67.
26 Since that refusal to grant access does not therefore fall within the scope of Article 6 of Directive 96/67, the Autonomous Authority was not required, under that directive, to grant a service provider such as RAS access to the airport infrastructure necessary for the provision of groundhandling services.
27 However, it must be pointed out that the mere existence of sectoral rules in no way means that the conduct in question is exempted from the competition rules laid down by the Treaties, irrespective of whether or not those sectoral rules are applicable to that conduct.
28 As the Court has held, the illegality of abusive conduct under Article 102 TFEU is unrelated to its compliance or non-compliance with other legal rules and, in the majority of cases, abuses of dominant positions consist of behaviour which is otherwise lawful under branches of law other than competition law (judgment of 6 December 2012, AstraZeneca v Commission, C‑457/10 P,EU:C:2012:770, paragraph 132). In other words, the fact that an undertaking’s conduct complies with a regulatory framework does not mean that such conduct complies with Article 102 TFEU (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 133).
29 Such a principle is, moreover, recalled in clear terms in recital 28 of Directive 96/67, which states that that directive does not affect the application of provisions of primary law and which refers in particular to the powers of the Commission under Article 106 TFEU.
30 It follows therefrom that, provided that the conditions for the application of Article 102 TFEU are satisfied, a particular line of conduct, such as a refusal to grant access to airport infrastructure, as in the present case, may, irrespective of whether or not it falls within the scope of sectoral rules, be caught by the prohibition of abuse of a dominant position laid down by that provision.
31 It must nevertheless be made clear that, although the fact that conduct is lawful under sectoral rules does not affect the application of Article 102 TFEU where the conditions for the application of that provision are satisfied, it is apparent from the case-law that a regulatory obligation may, by contrast, be relevant for the purposes of assessing abusive conduct, within the meaning of Article 102 TFEU, on the part of a dominant undertaking subject to sectoral rules (judgment of 27 October 2022, DB Station & Service, C‑721/20, EU:C:2022:832, paragraph 82 and the case-law cited).
32 In the light of the foregoing, the answer to the question referred is that Articles 1 and 6 of Directive 96/67 must be interpreted as not precluding the application of Article 102 TFEU in circumstances where a supplier of groundhandling services has been refused access to the airport infrastructure, which is necessary for the provision of such services, of an EU airport whose annual traffic, on the date of that refusal, was less than two million passenger movements.
33 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.