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2. The space available for groundhandling the basis of relevant, objective, transparent at an airport must be divided among the and non-discriminatory criteria'. various suppliers of groundhandling ser- vices and self-handling airport users, including new entrants in the field, to the extent necessary for the exercise of their rights and to allow effective and fair competition, on the basis of the relevant, objective, transparent and non-discrimina- I I — The main proceedings tory rules and criteria.

6. The order for reference shows that the claimant in the main proceedings is the operator of Hannover-Langenhagen air- 3. Where access to airport installations port. The defendant flies in and out of that gives rise to the collection of a fee, the airport and has for a considerable time latter shall be determined according to provided check-in services on a self-hand- relevant, objective, transparent and non- ling basis for its passengers and — as a discriminatory criteria.' supplier to third parties of such services — for passengers of other airlines.

5. When the Directive was adopted by the Council, the Commission arranged for a 7. The airport made available check-in statement to be entered in the minutes desks to Lufthansa in return for which it relating to the application of Article 16(3), collected a rent determined in accordance which reads as follows: with a contract for aircraft groundhand- ling. Until the end of 1997, the airport did not request payment from Lufthansa of a fee for access to the relevant market, at least not in the area of self-handling. On the other hand, it did require payment of 'The Commission states that Article 16(3) such a fee from suppliers of groundhand- recognises an airport's right to collect a fee ling services for third parties and from from suppliers of groundhandling services other suppliers. and self-handling users for access to its installations.

2. If the answer to Question 1 — first alternative — is affirmative, does the airport operator also have the right to claim such a fee from the self-handler III— Questions referred and/or supplier of handling services to third parties (supplier in the situation of the defendant in the main proceed- ings) in sectors where free access to the groundhandling market was already guaranteed prior to the entry into force '1. Is Council Directive 96/67/EC of of Directive 96/67, in particular in 15 October 1996 on access to the regard to land-side handling services? groundhandling market, in particular Article 16(3) thereof, in conjunction with Recital 25 in the preamble thereto, to be interpreted as meaning that the managing body of an airport within the meaning of Article 3 is 3. If Question 2 is answered affirmatively, entitled to demand from a self-handler is Directive 96/67 to be interpreted as and/or a supplier of groundhandling entitling the managing body of an services to third parties payment of a airport within the meaning of Article 3 separate licence fee for the grant of also to demand payment of an addi- "access to airport installations" in the tional licence fee as described in Ques- sense of an access fee in return for the tion 1 for "access to airport services" opening-up of a commercial opportun- from a self-handler and/or a supplier of ity in addition to a user fee (rental) services in the situation of the defend- payable by the self-handler or a sup- ant in the main proceedings who, until

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the market for the provision of ground- 15. The terms of Article 16(3) of the handling services. Directive are clear. What gives rise to an entitlement to collect fees is 'access to airport installations'. The meaning of this provision is in my opinion entirely without ambiguity. An 'installation' is something tangible, consisting of the airport infra- structures; it does not comprise the essen- 11. This access fee, which is described by tially intangible opportunity of generating a the Commission and the national court as a profit which may flow from the use of concession charge and which the claimant those infrastructures. in the main proceedings terms a 'licence fee' ('Gestattungsentgelt'), is payable solely in consideration of the airport operator giving the supplier of groundhandling services the opportunity of making a profit.

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within the meaning of Article 16(3) of the the 'market'. It is however clear that the Directive, is truly directed to access to the wording on which its argument is based 5 market. relates to access to a place, which could be an airport. Access to a place, which is something tangible, differs from access to a market, as is the case with the fee in question. As mentioned above, it is com- mon ground between the parties that that fee is not payable in respect of access to a 18. It is true that the airport does not 'place', but relates to access to an oppor- challenge the distinction between a pay- tunity for profit. ment for access to a market and one for access to installations. However, it suggests that in using the latter term the Community legislature meant in fact to refer to the former. It raises in this regard a whole series of arguments in support of its inter- pretation of the wording of the Directive. 21. It is therefore incorrect to conclude that, as the Opinion referred to above states, because access to a place may be essential to gain access to a market, in allowing payment to be made for access to a place, the Directive intended to allow a separate payment to be made for access to a 19. Those arguments are drawn, first, from market. considerations applying to the wording and the objective of and the background to the Directive, and, secondly, from various fundamental rights and principles.

23. Nevertheless, this argument should not 27. An opportunity for profit depends on a be held to be conclusive. The fact that it number of factors and in particular on the was a decision of the legislature to allow success and profitability of the supplier access to the market does not mean that it who gains access to the market. As a result, alone is entitled to determine the manner in such a criterion could not, by definition, be which access to the market may be gained. objective in relation to the costs incurred by the airport which are not in any way dependent on factors specific to a particular supplier, but solely on considerations that can be defined as objective, namely the nature of the installations in question and the use that is made of them. 24. I find the following argument, also put forward by the Commission, more logically convincing. The Commission notes that Article 16(3) of the Directive requires that the amount of the remuneration be deter- mined according to 'relevant criteria'. According to the Commission, it is there- fore necessary for that remuneration to be 28. The interpretation provided by the linked to the costs incurred by the airport wording of Article 16(3) of the Directive in making available those installations is supported by several of its other provi- which it requires to provide to the pro- sions. Mention may be made in this regard viders of groundhandling services and to of Articles 6 and 7 of the Directive which users wishing to self-handle. refer to 'free access by suppliers of ground- handling services to the market for the provision of groundhandling services to third parties' and to 'the freedom to self- handle'. It would be difficult hold that access was 'free', where in reality, if one adopts the airport's reasoning, it was 25. It follows that the criterion of relevance dependent on the payment of an access would not be met in the case of a fee such fee to a potential competitor, namely the as that in question in the main proceedings, airport operator. which is based not on the costs incurred by the airport but on the opportunity for profit arising from access to the market for groundhandling services.

30. The defendant in the main proceedings was moreover correct to point out at the 32. The interpretation based on the word- hearing t h a t the i n t e r p r e t a t i o n of ing of Article 16(3) of the Directive is in my Article 16(3) proposed by the airport opinion confirmed by an analysis of the would also result in stripping Article 16(1) objective of the Directive. of any sense. The latter requires Member States to take the necessary measures to 'ensure that suppliers of groundhandling services and airport users wishing to self- handle have access to airport installations to the extent necessary for them to carry out their activities'. By definition, access to 33. According to the airport, the principal the market is necessary in order to carry objective of the Directive is, as indeed its out activities in that market. Article 16(1) name implies, access to the market. By of the Directive would thus have no real contrast, the Directive does not seek to meaning if, as the airport argues, the phrase regulate rent paid for the use of things 'access to airport installations' should be located at the airport, contrary to the understood as referring to access to the interpretation supported both by the Com- market. mission and Lufthansa. The claimant in the main proceedings points out in this regard that Article 295 EC states that the rules governing the system of property owner- ship are a matter for the Member States. Moreover, to interpret the Directive as meaning that it was intended to regulate 31. That analysis is confirmed by the rent paid for airport installations would be recital to the preamble which relates to contrary to the principle of subsidiarity laid this provision, namely the 25th. This down in Article 5 EC. emphasises the need to guarantee to the relevant undertakings 'access to airport installations... to the extent necessary for them to exercise their rights'. These 'rights' could only consist of the right for those undertakings to offer their services, arising from the fact, as the recital states, that the 34. I agree entirely with the airport's providers in question are 'authorised' to analysis of the nature of the objective of carry out their activity. Those undertakings the Directive. The second recital empha- therefore have a right of access to the sises at the outset that the objective of the market which, having regard to the word- elimination of the restrictions on freedom I - 11902

35. If there is thus no doubt that the airport is correct to emphasise that the objective of the Directive is the opening-up of the market for groundhandling services, does it follow that it is right to draw the 38. It could not be said that in so doing, the conclusions from that which the airport Community measures in question necess- proposes? I do not think so. arily exceeded the competence of the Com- munity by affecting property law in the Member States, without at the same time giving that rule such an overriding import- ance that the realisation by the Community of its task of achieving the internal market 36. The fact that the objective of the would become impossible. Directive is the opening-up of the market and not the regulation of rents does not in any way mean that the question of access to installations may not properly fall within its scope. On the contrary, in a case such as the present one, where it is common ground that access to the market is not 39. Moreover, it should also be pointed out possible without access to the installations that the interpretation of the Directive themselves, it is entirely to be expected that proposed by the claimant in the main a directive whose aim is the opening-up of proceedings, in terms of which the right the market would include a provision relating to a condition precedent to that opening-up, namely access to the relevant 6 — Commission Decision 94/19/EC of 21 December 1993 installations. relating to a proceeding pursuant to Article 86 of the EC Treaty (IV/34.689 — Sea Containers v Stena Sealink — Interim measures) (OJ 1994 L 15, p. 8). 7 — See the Bronner judgment, cited above. 8 — Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990 L 192, p. 10). 9 — European Parliament and Council Directive 96/92/EC of 19 December 1996 concerning common rules for the 37. Such a case, which may be seen as internal market on electricity (OJ 1997 L 27, p. 20). comparable to the situation in which the 10 — Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community doctrine of 'essential facilities' falls to be airports (OJ 1993 L 14, p. 1).

44. The fee for access to the market con- 41. The same is all the more the case tributes to the self-financing of airports and where, as the fifth recital to the Directive thus to realising the objective of their states, the opening-up of the market efficient operation. All of this would be 'should help reduce the operating costs of compromised if operators were allowed to airline companies'. It is beyond doubt that avoid payment of this fee and thereby if the Directive were read as meaning that deprive the airport of a source of funding. access to the market in this way could be That loss could not be compensated for by made subject to payment by those com- an increase in rents, because the require- panies, or by the suppliers of services used ment of transparency imposed by the by them, of a specific fee, payable in Directive imposes a strict separation addition to the user fees otherwise payable, between fees for access to the market and the objective of reducing costs would be rents, as the latter must be apportioned to jeopardised. the airport services to which they relate.

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45. Furthermore, to compensate for the 48. The wording of the Directive makes it loss of the access fee by increasing rents entirely clear that the intention of the would mean requiring all tenants to pay for legislature was to open up access to the those suppliers of services who carried out market to the maximum possible extent, their activities using access to the airport while strictly limiting exceptions to this. 11 installations while at the same time renting Those exceptions are based 12 on safety, nothing within the airport precincts. security, capacity and available-space con- straints. By contrast, there is no reference to the financing requirements of airports, and the Directive does not mention these in the context of access fees, which are, it should be emphasised, optional in any event.

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51. The arguments of the claimant in the amendment included the following particu- main proceedings therefore fall to be lar provisions: rejected on this point.

'3. Access to and shared use of airport installations for suppliers of ground- handling services and users wishing to 52. The claimant also considers that the self-handle may give rise to the collec- historical background to the Directive sup- tion of a fee as a charge for the costs ports its interpretation. It notes first of all which this access and the provision of that the initial Proposal put forward by the the necessary infrastructure occasions Commission on 10 April 1995 13 contem- for the airport and reflecting the level plated a fee to cover the cost of making the of the costs... infrastructures necessary for the provision of groundhandling services available. Neither the new Proposal presented by the Commission on 12 March 1996 14 nor the Directive in the form in which it was ultimately adopted referred to this basis for recovery of costs. On the contrary, it A fee may also be charged for access by follows from the statement entered at the third parties to the commercial oppor- instance of the Commission in the minutes tunities created by the airport under- of the proceedings adopting the Directive taking...'. by the Council, referred to a paragraph 5 of this Opinion, that the fee referred to at Article 16(3) of the Directive was intended to form an independent source of self- financing for airports and to guarantee their efficient operation. 54. According to the claimant in the main proceedings, the Commission and the Council accepted this amendment, and the Directive should therefore be interpreted as allowing for the collection of a fee for access to the market.

56. It should also be emphasised that that 59. The latter also refers to Decision proposal for amendment made a very clear 98/513/EC 15 and case-law concerning it. 16 distinction, as is shown by the use of the However, both the Commission and Luf- word 'also', between the collection of a fee thansa rightly observe that this decision for 'access to airport installations' and a fee concerned the law as in force prior to the which 'may be charged for access by third adoption of the Directive and did not relate parties to the commercial opportunities to the question of the nature of the fee created by the airport undertaking'. The collected by the airport operator but latter is plainly a fee for access to the instead to the applicability of Article 86 market. It follows that the fee for 'access to of the EC Treaty (now Article 82 EC) on airport installations' referred to in the first differences in treatment by the airport of subparagraph of the amendment proposed suppliers of services. by the Parliament related to another matter. That could only be access to a specific infrastructure. Yet it was the expression 'access to airport installations' that was retained in the final text of the Directive. It is hardly likely that the same 60. The claimant in the main proceedings terms would have completely changed in adds lastly that the interpretation put meaning during the course of the same forward by it is the only one capable of legislative procedure. guaranteeing the respect of the fundamen- tal principles of Community law.

61. It refers first of all to the principle of non-discrimination set out in Article 12 EC 57. As regards the Commission's declar- and notes in that regard that this prohibits ation, the fact remains that it is hardly any direct or indirect discrimination on explicit. In particular, the reference to the self-financing of airports gives no indi- cation of the nature of the fee, as its 15 — Commission Decision of 11 June 1998 relating to a proceeding under Article 86 of the EC Treaty collection would contribute to that self- (IV/35.613 — Alpha Flight Services/Aéroports de Paris) (OJ 1998 L 230 p. 10). financing in both the scenarios at issue in 16 — Case T-128/98 Aéroports de Paris v Commission [2000] this case. ECR II-3929.

62. Airports would be encouraged to set different rates for self-handling users and suppliers of services such as Lufthansa, who pay no fee for access to the market, on the one hand, and for suppliers of services who have always paid a fee of this kind, on the other. It would follow that airports would be bound to discriminate between 64. It must be stated that the whole of this national airline companies and those of reasoning is based on a fundamentally false other Member States. Self-handling at all premiss. The question in the present case is the airports of another Member State not whether the claimant in the main served by it would rarely be profitable for proceedings is obliged to require payment an airline company. The result would for a of a fee for access to the market by small company be that it would require to Lufthansa in order to place it on an equal have groundhandling services provided by footing with all the other operators from a third party and in the final analysis to whom such a payment is apparently reimburse the fee for access to the market demanded. The question put by the paid by that third party to the airport. On national court is whether, after the coming the other hand, in airports located in the into force of the Directive, the airport is Member State in which it was established, a entitled to demand from any party, be it a national airline would by definition gener- supplier of services or a user wishing to ate a sufficient volume of traffic to justify self-handle, payment of a fee for access to using self-handling and would thus be free the market. of the requirement to pay a fee for access to the market.

71. In that context, I am of the view that there is no doubt that this fee could take into account factors such as the number of passengers or turnover. 68. I should state at the outset that I do not consider that the fundamental right to property requires that the Directive be read in this way.

72. I should also add that this line of argument based on the requirement to offer 69. It does not follow from the Directive compensation to the operator of an infra- that airports are be treated as being structure on the ground that the operator deprived of their property rights because provides access to a market seems to me in they would lose the opportunity to achieve the present case to minimise the importance a profit in making use of their assets. It of the relationship of interdependency should be emphasised in this regard that the which exists between the airport and the fact that airports are not entitled to collect airline companies. They jointly offer a

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service to passengers, without which 76. It is enough that the right of access to neither the airport nor the companies could installations should be remunerated at a prosper. Both the companies and the air- fair value, that is to say that it allows for port supply elements of the service pro- the depreciation of the installations and vided to passengers. costs of management and that it provides airports with a reasonable level of profit.

73. Lastly, the claimant in the main pro- ceedings referred at the hearing to the fundamental principle of free trade. It states in that regard that the freedom to determine prices is the counterpart of this 77. In light of the foregoing, I propose to principle. It would follow that an exception answer the first question as follows: to that freedom should be strictly construed and should be expressly mentioned in the Directive.

V — Conclusion

79. For the foregoing reasons, I propose to answer the questions referred by the Oberlandesgericht Frankfurt am Main in the following terms:

Council Directive 96/67/EC of 15 O c t o b e r 1996 — and in particular Article 16(3) read in conjunction with Recital 25 in the preamble thereto — should be interpreted as meaning that the managing body of an airport within the meaning of Article 3 is not entitled to demand from a self-handler and/or a supplier of handling services payment of a separate licence fee for the grant of 'access to airport installations' in the sense of an access fee for the opening-up of a commercial opportunity.

On the other hand, the managing body of an airport is entitled to collect a fee for the use of airport installations, the amount of which is to be determined in accordance with the criteria laid down under Article 16(3) of the said Directive and having regard to the interest of the managing body of the airport in making a profit.

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