C-82/01

AÉROPORTS DE PARIS v COMMISSION

OPINION OF ADVOCATE GENERAL MISCHO delivered on 21 February 2002 1

1. On 11 June 1998, the Commission Article 2 adopted its decision 98/513/EC relating to a proceeding under Article 86 of the EC Treaty (IV/35.613 — Alpha Flight Ser- vices/Aéroports de Paris) 2(hereinafter 'the contested decision'), which states: Aéroports de Paris shall put an end to the infringement referred to in Article 1 by applying to the suppliers of groundhand- ling services concerned a non-discrimina- tory scheme of commercial fees within two months of the date of notification of this decision.'

8. The Commission also relies on Article 37(4) of the Rules of Procedure of the Court, which provides that to every 4. Initially, the Commission raised a pre- pleading 'there shall be annexed a file liminary objection to the admissibility of containing the documents relied on in that claim, on the ground that AFS had not support of it, together with a schedule yet intervened in the proceedings before the listing them'. Court. As AFS did intervene following the lodgment of the Commission's defence, that objection was not maintained.

9. It is not disputed in the present case that the appellant refers in its appeal to a certain number of supporting documents which are not annexed to it. However, the Commis- 5. However, the Commission has disputed sion does not deny that these documents the admissibility of the appeal. It is appro- had been annexed to the application to the priate to consider its arguments before Court of First Instance and that accordingly proceeding to examine the substance of it was familiar with them. the case.

10. The Commission nevertheless claims 6. In its appeal, ADP refers on several that the lack of any prejudice with respect occasions to supporting documents which to its ability to defend itself, a point are not annexed to it, but which were emphasised by the appellant, does not annexed to its application to the Court of prevent it from pleading the inadmissibility First Instance. of the appeal.

I - 9302

AÉROPORTS DE PARIS v COMMISSION

12. It states that one of them consisted in a failure in the appeal to designate the other parties to the proceedings, in breach of Article 112(1)(b) of the Court's Rules of 16. Second, it should be noted that in the Procedure. The other related to the present case, each of the documents that omission of the date on which the judgment was not annexed to the appeal was known appealed against was notified to the to the parties to the proceedings, including parties, as required by Article 112(2). A the interveners, as they were included with defect of that kind is not of a serious nature the application at first instance. It must also where information regarding the date is be observed that those documents are not easily accessible. of such importance that their absence would prevent a Member State which had to decide on whether to intervene in the proceedings before the Court pursuant to Article 49(3) of its EC Statute from properly assessing the various aspects of the case. It follows that it would be difficult to maintain in the present case that the failure to annex the documents to the 13. According to the Commission, the appeal had any practical consequence. failure to annex the documents cited in support of the appeal is not comparable to those formalities. Those documents are not the subject of any publicity, unlike the information referred to in Article 112(1)(b) and (2) of the Court's Rules of Procedure. 17. I find myself therefore unable to con- clude, as does the Commission, that the 4 — Case C-91/95 P [1996] ECRI-5547, paragraphs 10 and 11. principle established in Tremblay and

18. On the contrary, I agree with the appellant's submission that that judgment supports the contention that omissions 22. It would however be inconceivable for which, as in the present case, do not affect such a serious sanction not to have been the rights of the parties in any way cannot explicitly prescribed in the Court's Rules of entail the inadmissibility of the appeal. Procedure. This is particularly so inasmuch Article 38(7) of the Rules provides for the possibility of declaring an application for- mally inadmissible in the event of non- compliance with paragraphs (3) and (6) of that article. There would therefore have been nothing to prevent the inclusion in the Rules of Procedure a similar provision in 19. That is furthermore confirmed, with relation to Article 37. even greater force, by the judgment in Coopératives agricoles de céréales v Com- mission and Council, 5cited by the Com- mission itself. In that case, the Court found that the absence of certain documents had embarrassed the Commission in the prep- 23. Furthermore, not only is inadmissibility aration of its defence. Despite this finding, under Article 38(7) of the Rules of Pro- the Court did not hold that the application cedure a matter to be decided upon only was inadmissible. after the party concerned has failed to put the pleading in order within a reasonable time, but it is also not automatic. That provision states that the Court is to decide 'whether the non-compliance with these conditions renders the application formally inadmissible'. 20. It must also be noted that the Commis- sion's contention is unsupported by the provisions of the Court's Rules of Pro- cedure relating to the written procedure. 24. It is therefore unlikely that the Court's Rules of Procedure, which provide for the 5—Joined Cases 95/74 to 98/74, 15/75 and 100/75 [1975] ECR 1615. possibility of inadmissibility only as a last

28. Under this plea, which is directed to 26. The parallel which the Commission paragraphs 34 to 52 of the contested seeks to draw with the order made in judgment, the appellant alleges that in Lopes v Court of Justice 6is also uncon- rejecting its contention that Regulation vincing. The inadmissibility in that case did (EEC) No 3975/87 7and not Regulation not result solely from an infringement of No 17 8is applicable to the present case, Article 37 of the Rules of Procedure, but the Court of First Instance infringed these above all from a failure to comply with regulations. Article 17, second paragraph of the EC Statute of the Court of Justice, which requires that a party be represented by a lawyer even where the applicant is himself a lawyer authorised to plead before a national court. It was the refusal of Mr 29. ADP relies on the judgment in Com- Lopes to use the services of another lawyer mission v UIC, 9where the Court held at which led to the infringement of the Statute paragraph 44 that 'it was the whole of the and to his application being declared inad- missible. His inability to lodge an originat- ing application signed by his agent was no 7 — Council Regulation of 14 December 1987 laying down the more than the inevitable consequence, at procedure for the application of the rules on competition to the formal level, of that refusal, and was undertakings in the air transport sector (01 1987 L 374, p. 1). 8 — Council Regulation of 6 February 1962, first Regulation implementing Articles 85 and 86 of the Treaty (0J, English Special Edition 1962, p. 291). 6 — Case C-174/96 P [19961 ECR 1-6401. 9 — Case C-264/95 P |1997| ECR 1-1287.

32. In that regard, it should be noted, first, that paragraph 44 of that judgment was devoted to the Court's examination of the question whether contractual clauses relat- ing to the marketing of transport services by travel agencies whose aim was to favour the supply of rail transport were covered by 35. Second, it should be noted that at Regulation No 17 or by a sectoral regu- paragraph 29 of the same judgment the l a t i o n , namely Regulation (EEC) Court observed that 'the Court of First No 1017/68. 11 Instance rightly held that the dispute con- cerned the interpretation of Regulation No 1017/68 and not of Regulation 10 — Council Regulation of 26 November 1962 exempting No 141'. It is accordingly doubtful that transport from the application of Council Regulation No 17 (OJ, English Special Edition 1959-1962, p. 291). the Court intended in its judgment to take a 11 — Council Regulation of 19 July 1968 applying rules of position on the interpretation of Regulation competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302). No 141.

I - 9306

AÉROPORTS DE PARIS v COMMISSION

36. Furthermore, the appellant's conten- 40. ADP further claims under this plea that tion amounts to saying that the Court had the Court of First Instance made an error of construed the last-mentioned regulation in law in its analysis of Regulation such a way as to attribute a wide scope to No 3975/87 itself. it.

I - 9307

OPINION OF MR MISCHO — CASE C-82/01 P

43. In that regard, ADP complains that the Instance also refers. This provision applies Court of First Instance inferred from only to practices capable of 'directly jeop- Article 1(2) of Regulation No 3975/87, ardising the existence of an air service'. which provides that 'This Regulation shall apply only to international air transport between Community airports', that the regulation only applied to air transport services in the strict sense.

47. The appellant claims in this regard that that provision supplies an argument in favour of the application of Regulation No 3975/87 to the whole of the air trans- 44. According to the appellant, the word port sector. It is clear that such practices 'only' relates solely to the expression 'be- could be engaged in by undertakings in the tween Community airports' and is intended transport sector other than the carriers to exclude transport involving non-Com- themselves. munity airports.

50. Finally, the appellant is also incorrect in regarding as wholly irrelevant the refer- 54. The Court of First Instance was there- ence by the Court of First Instance to the fore entitled to find that this was a further first recital in the preamble to Regulation reason for holding that Regulation No 17 is (EEC) No 3976/87, 15 which states that applicable to all types of conduct other Regulation No 17 is applicable to agree- than that which relates directly to the ments 'other than those directly relating to provision of air transport services. the provision of air transport services'.

55. It follows from this conclusion that, contrary to what the appellant contends, the concept of 'transport services' is not to 51. ADP submits that it is another regu- be construed as covering all kinds of lation, namely Regulation No 3975/87, activity connected with the air transport which is at issue in the present case. In sector, with the result that they are particular, and above all, Regulation excluded from the application of Regu- No 3976/87 applies only to agreements lation No 17. whereas in the present case it is an abuse of a dominant position that is alleged.

56. The Court of First Instance was there- fore right in holding that the activities of the appellant did not constitute transport 52. The fact remains that, as the Commis- services within the meaning of Regulation sion points out, the two regulations were No 3975/87, as ADP is not a provider of air adopted concomitantly and have the same transport services and so is not an air subject-matter, namely the application of transport undertaking. the rules on competition to air transport services.

59. Furthermore and in any event, it is not disputed that the appellant does not pro- Second plea, alleging breach of the obli- vide groundhandling services, as indeed the gation to state reasons Court of First Instance properly pointed out.

63. ADP submits that the Court of First 16 — Council Directive of 15 October 1996 on access to the groundhandling market at Community airports (OJ 1996 Instance has contravened its obligation to L 272, p. 36). state reasons in that its reasoning is contra-

I - 9310

AÉROPORTS DE PARIS v COMMISSION

dictory. On the one hand, it found that the 67. It follows from settled case-law, includ- Commission's decision did not require ing the order made in Kupka-Floridi v identical fees to be charged for self-hand- Economic and Social Committee, that an ling and handling for third parties. On the appeal 'must clearly state which aspects are other hand, it stated that ADP provided the criticised in the judgment which the Court same services in each case, which, accord- is requested to set aside and the legal ing to ADP, of necessity excludes the arguments which specifically support the possibility of different treatment. request'. 18

68. That is the situation in the present case. The appellant lists clearly the paragraphs which it seeks in particular to criticise, 64. The Commission disputes the admissi- namely paragraphs 62, 66 and 67 first of bility of this plea on the ground that it is a all, and secondly paragraph 206. The mere repetition of the second and third specific arguments raised against those pleas raised before the Court of First paragraphs are likewise set out, and the Instance. In light of this and having regard appellant explains that the paragraphs to the case-law of the Court of Justice, 17 disclose, in its submission, a contradiction this plea must be held to be inadmissible. in the reasoning of the Court of First Instance.

72. The Court of First Instance accepted Third plea, alleging breach of the rights of the Commission's argument that the fees defence required to be fixed in a non-discriminatory manner. It found that differences existed. It accordingly, and very logically, went on to consider whether any justification had been put forward to negate the charge of dis- 76. Before the Court of First Instance, ADP crimination. challenged the classification of its services as a 'business activity' for the purposes of the Treaty, using as an example a provider of groundhandling services, HRS, which, according to ADP, carries on its activity from outside the airport precincts without 73. In that context, it found that there was paying any fee to ADP. no such justification, having regard in particular to the fact that the services offered in both categories were the same. Naturally, the fact that the differences were not justified in the present case does not in any way imply that they could not be 77. The appellant criticises the Court of justified in another, and that fees require to First Instance for having stated at be identical in all cases. It should be borne paragraph 126 of the contested judgment in mind in this regard that it follows from that '[the] activity [of HRS] should there- the very concept of non-discrimination not fore also be subject to a commercial fee and only that identical situations must be the fact that it does not pay such a fee is treated in the same way, but also that, in merely a further instance of discrimi- their turn, different situations must not be nation... although not expressly raised in treated in the same way, assuming the contested decision...'. obviously that objectively relevant differ- ences are involved.

before the delivery of the contested judg- conclusion of the Court of First Instance ment, against such a complaint, which that the example given by the appellant did appeared neither in the statement of objec- not call into question its reasoning in tions nor in the decision. relation to the activities of ADP. The fact that this example also discloses discrimi- nation not alleged by the Commission is merely an incidental finding made by the Court of First Instance 79. It must however be observed that a reading of the whole text of paragraph 126 shows, as the Commission points out, that the finding of the Court of First Instance in this regard is made purely for the sake of completeness. 83. Furthermore, and in any case, I would add that there is no basis for this plea. It is not for the Court of First Instance to make findings proprio motu as to the existence of infringements. That is the responsibility of 80. At paragraphs 120 to 125 of the the Commission, which it exercises in the contested judgment, the Court of First framework of a procedure guaranteeing Instance demonstrated the economic char- respect of the rights of defence. acter of the activities of ADP. Para- graph 126 only exists to add that that finding is not affected by the situation relating to HRS, a matter trie appellant had raised. 84. It follows that a finding of the Court of First Instance, such as the one criticised by the appellant, can in no circumstances be regarded as establishing the existence of an 81. The Court of First Instance took the infringement of competition law, even if it view, which has not been challenged by may give the impression of doing so. ADP, that HRS has to use the airport Accordingly, and contrary to what ADP facilities since, by definition, groundhand- argues, it cannot result in legal proceedings ling services are provided within the air- being brought against the latter to establish port. It deduced logically from that that its liability, nor indeed can it give rise to HRS should also pay a commercial fee and any sanction in relation to ADP (not that that the example of its situation could not any sanction is suggested in the present affect the conclusions reached by the Court case). of First Instance elsewhere in relation to the nature of the commercial fee at issue or the services for which it constituted remuner- ation.

91. While it is true that this wording is not wholly free from ambiguity, it none the less 88. These arguments should not be remains the case that it is sufficient to accepted. return it to its context, as the remainder of the contested decision clearly shows, to understand that the decision is directed to discrimination 'between suppliers or users engaged in the same groundhandling activ- ity'. 19 This is confirmed in particular by the detailed comparison of the levels of fees 89. It should be noted that, as the Com- to which the Commission then turns. 20 mission points out and contrary to what ADP claims, the contested decision is not directed to discrimination between air 19 — Paragraph 108 of the grounds of the contested decision. carriers. Article 1 of the decision leaves 20 — Paragraphs 109 to 127 of the grounds of the contested no room for doubt in this regard, as it decision.

I-9314

AÉROPORTS DE PARIS v COMMISSION

92. The sentence referred to by the appel- contested decision, only the large airlines lant must therefore be understood as with a large volume of traffic in the,Paris describing, incidentally, the consequences airports are in practice able to develop and of the discriminatory fees for air carriers operate profitably a self-handling service, who, as customers or, as a result of self- while the others are obliged to use third- handling, as operators in the market of party groundhandlers.' groundhandling services, are liable to be affected by discrimination towards the providers of groundhandling services.

95. It follows from the foregoing that this plea should be rejected.

I-9315

OPINION OF MR MISCHO — CASE C-82/01 P

property. The fact that the terms 'manage- Commission, it none the less remains the ment services' does not actually appear in case that the plea raised in the appeal the agreements is sufficient to demonstrate cannot be seen as a mere duplication of the the distortion of the clear sense of those plea submitted at first instance. agreements by the Court of First Instance. Furthermore, the Court of First Instance should have taken account of 'French law applicable to property owned by the State', given that those agreements were entered into under the regime applying to 'licences 101. Not only does the appellant clearly to occupy publicly-owned property'. specify the paragraphs of the judgment which it subjects to reasoned criticism, but it also raises arguments that could not have been put previously, namely its criticism of the Court of First Instance's analysis of the agreements between ADP and the providers of groundhandling services. 98. The first point to be noted here is that this plea is closely linked to the two pleas which follow it. These three pleas have more or less the same object, namely the determination made by the Court of First Instance that ADP's activities were econ- 102. The Commission goes on to assert omic in nature and the application of the that the plea in question should be held to concept of a business or undertaking to it. be inadmissible on the ground that it Having regard however to the variety of constitutes a plea going to the facts, and arguments raised in support of these pleas, I is accordingly not a matter for examination take the view that it is appropriate to by the Court on appeal. consider them separately.

to a substantial misrepresentation of the fact that the expression 'management ser- facts or to a distortion of the clear sense of vices' does not appear in it is of no the evidence is irrelevant. It is clear from significance, as the very purpose of the the case-law that both the assessment of the agreement is to licence AFS to occupy a evidence and the findings of fact by the series of properties intended for use for the Court of First Instance are not amenable to operation of a catering service 24and to review by the Court of Justice on appeal, erect and fit out a building necessary for save where there has been such misrepre- that use 25 (clause 17 of the agreement). It is sentation or distortion. 22 difficult to see how ADP would be able to offer the occupants of its properties the opportunity effectively to undertake these operations without at the same time allow- ing AFS to take advantage of ADP's management of all the facilities available 105. It is necessary therefore to consider at the airport. These would include, for whether in the analysis by the Court of example, permanent checking of the First Instance of the content of the agree- accreditation of authorised persons and ments in question, there was such a dis- the putting into place and implementation tortion, in that it found that the fees in issue of all measures necessary to allow for the were due in exchange for management performance, in wholly secure conditions, services provided by ADP and the provision by approved service providers of their of facilities shared by users and the pro- activities. viders of groundhandling services in the airport.

110. Unless the references to 'use or opér- ation' are to be deprived of any meaning, it 114. Therefore, in approving the distinc- must be concluded that the fee is not tion made by the Commission between the payable only in exchange for a right of State fee, payable in exchange for a licence private occupation of publicly-owned prop- to occupy, and the commercial fee, payable erty. in exchange for the permission to use or operate, the Court of First Instance, far from having distorted the clear sense of the facts and evidence, has in my opinion made a perfectly correct assessment of them.

118. It follows from the foregoing that this 122. The particulars provided by the appel- plea should be rejected. lant show however that its plea is in reality directed against paragraph 129 of the contested judgment, which reads as fol- lows:

Sixth plea, alleging perverse interpretation of national law

'For the sake of completeness, it should be 119. The appellant claims that the Court of pointed out, in that regard, that according First Instance clearly interpreted national to the French Competition Council, ADP law perversely in holding that 'the activities may be regarded as an undertaking subject in question carried out by ADP are econ- to the competition rules laid down in omic activities, and although those activ- French law and the provision of airport ities are carried out on publicly-owned premises constitutes an economic activity property, they do not for that reason form (decision 98-D-34 of 2 June 1998, cited part of the performance of task conferred above). Moreover, it is clear from the by public law'. judgment of the Tribunal des Conflits of 18 October 1999, cited above, that the decision of the Competition Council of 2 June 1998 was only partially annulled. The Tribunal des Conflits held that "the decisions to locate the activities of the Air 120. This quotation is taken from France group at Orly-Ouest air terminal paragraph 125 of the contested judgment, and to refuse to allow TAT European where the Court of First Instance concludes Airlines to open new routes from that air an analysis which starts at paragraph 119. terminal, which relate to the management This states that the Court of First Instance of publicly-owned property, constitute the will now consider 'whether those services use of powers conferred by public law". By constitute a business activity for the pur- contrast, the Tribunal des Conflits con- poses of Article 86 of the Treaty'. firmed that "the practices on the part of

126. The appellant contends nevertheless 130. It follows that the reasoning of the that the Court of First Instance was wrong Court of First Instance was indeed given for to categorise its reasoning as being for the the sake of completeness when, at sake of completeness. According to it, it is paragraph 129 of the contested judgment, on this appraisal of French law that turns it explained why it did not agree with the the question whether the administration of appellant's analysis of the case-law relating to the question whether under French law ADP's activities represent the exercise of 28 — See, for example, Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 47. official powers.

I - 9320

AÉROPORTS DE PARIS v COMMISSION

131. As regards the question whether the 135. Here again, the similarity between the analysis of Court of First Instance in two cannot be denied, and I could under- relation to the criteria for the application stand it were the Court to hold that ADP of Community competition law is correct, has simply repeated the arguments put this is the subject of the following pleas put forward at first instance. However, as the forward by ADP. appellant indicates in a sufficiently clear manner the paragraphs of the judgment it criticises, and presents a reasoned argument against them, I am nevertheless of the view that the Commission's objection should be rejected. 132. It follows from the foregoing that this plea should be rejected as being irrelevant.

136. In any event, I entirely agree with the Commission's analysis of the substance of this plea. Seventh plea, relating to the concept of undertaking for the purposes of Article 86 of the EC Treaty

143. Nor does the appellant itself put forward anything specific to show that its relations with the providers of ground- handling services, as they appear from the 140. In the present case, the Court of First agreements in question, are determined by Instance has shown beyond doubt that the exercise of its official powers. there is a distinction, within the activities of the appellant, to be made between those which relate to the exercise of official powers and the remainder of those activ- ities. 30 144. It restricts itself to pointing out that these agreements are governed by the law applicable to property owned by the State, without putting forward anything of a specific nature that might suggest that the activity in question does not have an 141. It rightly held that the activities car- economic character. ried on by ADP that are relevant to the present case comprise the provision of airport facilities to airlines and various service providers, in return for a fee at a rate freely fixed by ADP. ADP therefore offers to economic operators, in exchange 145. The appellant therefore fails com- for payment, a service in the form of access pletely to show in what way the Court of to infrastructure. It is settled case-law that First Instance was wrong to hold that this any activity consisting in offering goods was not a case where, in accordance with and services on a given market is an the Court's case-law, a public-law entity or economic activity. 31 an entity entrusted with the provision of a public service and acting in its capacity as a public authority should be considered not to be an undertaking for the purposes of Article 86 of the Treaty.

151. The appellant's assertion relating to 148. Similarly, the criticism levelled against the lack of any need to be the beneficiary of the observation by the Court of First an agreement of that kind raise a different Instance that 'the facilities within the Paris question, namely that of the legal con- airports are essential, since their use is ditions governing access to the abovemen- indispensable to the provision of various tioned essential facilities. services, in particular groundhandling' 33 has no relevance. That observation is not intended to support its reasoning in relation to the absence any impact of the official powers vested in the appellant, which is the subject of this plea. 152. The example of HRS, cited by the appellant, illustrates this distinction. The fact that HRS does not, according to the appellant, benefit from an 'agreement for private occupation of publicly-owned prop- erty' does not mean that it does not in practice require to have access to the 149. Furthermore, in making that state- airport facilities in order to carry on its ment, the Court of First Instance limited activity. It is only able to do this by virtue of an agreement with ADP allowing it to offer its groundhandling services in the 33 — Paragraph 122 of the contested judgment. airport facilities managed by the latter.

I - 9323

OPINION OF MR MISCHO — CASE C-82/01 P

154. Lastly, ADP argues that the observa- tion made by the Court of First Instance 157. It follows that the Court of First that the activity in question is capable of Instance was not entitled to find that the being exercised by private undertakings relevant market was 'in management ser- 'has no bearing on the issue'. It must vices at the Paris airports' covering 'the however be observed that it is settled conditions of access to airport instal- case-law that this is a relevant criterion lations'. for determining whether an activity is, or is not, an activity carried on by an undertak- ing within the meaning of Article 86 of the Treaty. 35 158. Furthermore, its reference to the judg- ment in British Leyland v Commission, 36 concerning a situation where it was essen- tial to hold a certificate of conformity issued by the manufacturer in order for an imported vehicle to be registered, is irrel- Eighth plea, relating to definition of the evant because, in the present case, it was, market precisely, not necessary to occupy publicly- owned property, and accordingly to pay a fee, in order to provide groundhandling services. 155. The appellant submits that the Court of First Instance infringed Article 86 of the Treaty in erroneously defining the market in question. 159. The Commission disputes the admissi- bility of the plea, on the ground that it is no 34 _ Case 41/83 Italy v Commission [1985] ECR 873 and Case T-229/94 Deutsche Bahn v Commission [1997] ECR II-1689. 35 — Case C-41/90 Höfher and Elser [1991] ECR 1-1979, paragraph 22. 36 — Case 226/84 [1986] ECR 3263.

160. As regards the challenge by the appel- lant to the definition of the product market 163. It is also interesting that nowhere in adopted by the Court of First Instance, it its reply does the appellant provide any must be observed that the appeal includes argument in support of the admissibility of points which specifically address the rea- this aspect of the plea. soning of the Court of First Instance and which accordingly do not appear in the application submitted at first instance. In particular, the appellant disputes the rel- evance of this Court's decision in British 164. It follows, by application of the Leyland v Commission, cited by the Court decision in Kupka Floridi v CES cited of First Instance, and argues that the latter above, that the plea should be held to be cannot use against it the new arrangements inadmissible to the extent that it relates to introduced, after the statement of objec- the definition adopted by the Court of First tions, in connection with the measures Instance of the geographical market in taken for the implementation of the direc- question. tive on groundhandling services, and men- tioned at paragraph 127 of the contested judgment.

165. It has already been shown that the Court of First Instance did not substantially misrepresent the facts or distort the clear sense of the evidence in holding that the 161. The plea must therefore be held to be fees in dispute were not payable in admissible, to the extent that it relates to exchange only for the private occupation the definition of the product market. of publicly-owned property.

167. In this context, the providers of 170. The criticism made by the appellant of groundhandling services represent the the definition of the market given by the demand side of a service with which only Court of First Instance cannot, therefore, ADP is able to provide them, namely access be upheld. Furthermore, it follows from the to its facilities, subject to conditions which foregoing that the Court of First Instance it specifies as part of its management of was wholly justified in stressing the parallel those facilities. between the present case and the British Leyland judgment, cited above. At paragraph 138 of the contested judgment the Court of First Instance clearly explained that the British Leyland case put in issue the monopoly held by that undertaking in issuing certificates of conformity required 168. The fact that the authorisation can in order for a vehicle of that marque to be likewise be obtained by operators such as registered and that, in that case, the Court HRS, who do not occupy publicly-owned of Justice held that the relevant market was property in a private capacity, does not not that of the sale of vehicles, but a detract from the fact that the authorisation separate ancillary market, namely that of is necessary in order to gain access to the services which were in practice indispens- airport facilities where, by definition, able for dealers who wished to sell the groundhandling services are provided. vehicles manufactured by British Leyland. Operators such as HRS therefore also form part of the demand side of the market in the service offered by ADP.

175. It is clear from what has already been said that ADP makes access available to the 178. It added that 'the argument alleging airport facilities in which, by definition, the failure to take into account all the land and provision of groundhandling services must buildings in the Paris area cannot be be made available. This characteristic dif- upheld, since the management of airport ferentiates ADP's services from those of services, which is the relevant market in the every other owner of land or buildings in present case, concerns only the airport the Paris region. It follows that the Court of precincts, the supply of services by ADP, First Instance was right in holding that the and only ADP, being a necessary condition relevant market did not extend to all of the of the provision of groundhandling ser- land and buildings in that region. vices'.

I - 9327

OPINION OF MR MISCHO — CASE C-82/01 P

179. The appellant submits that in making 184. As regards the authorisation issued at this finding the Court of First Instance the time by ADP giving access to the infringed Article 86 of the Treaty. restricted zone in the airport precincts, the appellant repeats that that authorisation, should it be needed, was in no way restricted to service providers having pri- vate occupation of publicly-owned prop- erty and that no fee was payable for its issue as such. It cannot, therefore, be 180. It repeats in this regard that the fees in relevant in a case involving, according to issue are exclusively payable in consider- the appellant, fees charged as consideration ation for the private occupation of publicly- for the private occupation of publicly- owned property, which is not indispensable owned property. to the provision of groundhandling ser- vices.

188. It follows that the plea is admissible. in finding, rightly, that there was a domi- nant position, which is characterised, as it correctly pointed out at paragraph 147 of the judgment, by the opportunity for ADP to act to a considerable extent indepen- dently of its competitors, their customers 189. As far as the substance of the plea is and, ultimately, of consumers. concerned, the description of it just given shows at once that it is based on the same premisses as the preceding plea and that it must therefore be rejected. As regards the nature of the fees as consideration for the private occupation of publicly-owned prop- 192. It was also appropriate for the Com- erty which is not indispensable for offering mission to draw an analogy with the judg- groundhandling services, and the possibil- ment in Portugal v Commission 37, where ity of obtaining the authorisation for no this Court held, in relation to airport fee, it is appropriate to refer to what has charges for the landing and take-off of been said above, in the analysis of the aircraft, that an airport authority which eighth plea, namely that it is access to the holds exclusive rights granted to it by the airport facilities that constitutes the rel- State holds a dominant position in the evant market in the present case. market for services linked to access to airport facilities.

190. The appellant's assertion that there can be no question of a monopoly here, as its powers over the facilities in question are 193. It should, incidentally, be noted that those which any owner has, does not call the appellant's argument that it possesses into question the validity of the reasoning on its publicly-owned property no greater of the Court of First Instance. As owner, powers than those of any owner appears, ADP is the only party in a position, as it on the face of it, difficult to reconcile with itself admits, moreover, to authorise, and, its insistence on its powers as a public as the case may be, to refuse access to the authority, which it uses to justify the airport facilities and to specify the con- inapplicability of competition law in the ditions relating to that access, without present case. which, by definition, the provision of groundhandling services is impossible.

201. The Court of First Instance was there- fore correct in holding that the fee was not wholly payable as consideration for the 197. In so doing, the Court of First private occupation of publicly-owned prop- Instance misrepresented the functions of erty and that it was appropriate to analyse the fee in question. In this regard, the separately the variable part of the fee, appellant repeats its argument that the two which was the counterpart of the licence elements of the fee are incapable of separ- to supply services, at issue in the contested ation, as they constitute a single fee levied decision, unlike the State part of the fee, for the private occupation of publicly- which was not charged in the case of AFS owned property. ('No State fee is payable'). Accordingly, it was also right in not taking the latter into account when comparing the treatment of the service providers AFS and OAT.

198. It must be recalled, however that it has already been stated above that the Court of First Instance was not guilty of any misrepresentation in rejecting the 202. The applicant next claims that the appellant's contention. Court of First Instance made an error of

I - 9330

AÉROPORTS DE PARIS v COMMISSION

205. ADP further states that, in its com- plaint, AFS raised only the question of handling for third parties. This demon- strates that only one rate is legally relevant. The Court of First Instance should there- 209. Because both of those categories of fore have limited its analysis to this point. activity benefit from and receive the same

I - 9331

OPINION OF MR MISCHO — CASE C-82/01 P

services from ADP, they must be treated in Article 86 of the Treaty, found that there a non-discriminatory manner as regards the was a distortion of competition in the relations between ADP and its commercial market for groundhandling services, result- partners. ing from the discriminatory fees charged by ADP to the providers of these services.

I - 9332

AÉROPORTS DE PARIS v COMMISSION

Conclusions

216. In light of the foregoing, I propose that the Court should:

— dismiss the appeal;

— order the appellant to pay the costs, including those of AFS.