Official Journal of the European Communities 16. 3. 1999 L 69/31
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16. 3. 1999 EN Official Journal of the European Communities L 69/31 COMMISSION DECISION of 10 February 1999 relating to a proceeding pursuant to Article 90 of the Treaty (Case No IV/35.703 — Portuguese airports) (notified under document number C(1999) 243) (Only the Portuguese text is authentic) (Text with EEA relevance) (1999/199/EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, fixed by order in Council, following consultation Having regard to the Treaty establishing the European with the Directorate-General for Civil Aviation. Community, and in particular Article 86 and Article 90(1) The third paragraph of Article 18 states that the and (3) thereof, charges may be differentiated according to the category, function and degree of utilisation of the Having given the Portuguese authorities, Aeroportos e airport in question. Navegaçao Aérea — Empresa Publica (ANA), TAP Air Portugal and Portugalia the opportunity to make known Implementing decree (Decreto regulamentar) No their views on the objections raised by the Commission, 38/91 of 29 July 1991 lays down the conditions governing landing charges: Whereas: ‘Article 4(1): A landing and take-off charge shall be I. THE FACTS due for each landing by an aircraft, and shall be based on the maximum take-off weight stated in (a) The relevant State measure the airworthiness certificate. (1) This proceeding relates to the system of discounts Article 4(5): Domestic flights shall be granted a on landing charges in use at Portuguese airports reduction of 50 %'. and the differentiation of these charges according to the origin of the flight. Every year the Government issues an order Article 18 of Decree-law No 102/90 of 21 March updating the levels of the charges. 1990 provides that the amount of aeronautical (2) The following system of discounts was introduced charges at airports administered by Aeroportos e by order in Council (Portaria) No 352/98 on 23 Navegaçao Aérea — Empresa Publica (ANA) is June 1998, pursuant to Decree-law No 102/90. Discount relative to Charges charge for first 50 Lisbon airport (PTE/t) flights (%) First 50 flights (landings per month) 1 146 Second 50 flights 1 063 –7,2 Third 50 flights 979 –14,6 Fourth 50 flights 888 –22,5 Thereafter 771 –32,7 Airports at Oporto, Faro and the Azores First 50 flights 1 146 Second 50 flights 938 –18,4 Third 50 flights 866 –24,4 Fourth 50 flights 786 –31,4 Thereafter 681 –40,6 Source: Letter from Portuguese authorities, 16 July 1998. L 69/32 EN Official Journal of the European Communities 16. 3. 1999 (b) The relevant undertaking and the relevant — domestic flights serve the island airports, for services which there is no alternative to air transport, — the other domestic flights involve very short (3) ANA is a public undertaking responsible for distances and low fares. administering Portugal’s three mainland airports (Lisbon, Faro and Oporto), the four airports in the Azores (Ponta Delgada, Horta, Santa Maria and (8) The Portuguese authorities emphasise the Flores), aerodromes and air traffic control services. economic and social cohesion aspects on which the The airports of the archipelago of Madeira are system is based. administered by ANAM SA. (9) As regards international flights, the Portuguese According to Article 3(1) of Decree-law No 246/79, airports are in competition with the airports at which provides the legal basis for the creation of Madrid and Barcelona, which employ the same ANA: type of charging mechanism. The Portuguese authorities also wish to encourage the economies of ‘ANA-EP shall be responsible for operating and scale deriving from more intense use of the developing, on a public-sector basis, auxiliary airports, and to promote Portugal as a tourist des- services for civil aviation, taking the form of an tination. undertaking with responsibility for directing, guiding and controlling air traffic movements, and providing services associated with the departure (10) ANA asserted that the system of differentiated and arrival of aircraft, the boarding, debarkation discounts on landing charges had been introduced and transport of passengers and the loading, for two reasons: unloading and transport of freight and mail.' — in order to apply a pricing policy similar to those in operation at the Madrid and Barcelona (4) ANA issues authorisations to the airlines which require access to the airport facilities that it admin- airports, which are situated in the same isters, and provides these airlines with landing and geographical area take-off services for their aircraft, in return for and which it levies charges, the level and amount of — in order to reduce operating costs for the most which are set by order in Council (1). frequent and regular users of the airports administered by ANA. (c) The landing charges II. LEGAL ASSESSMENT (5) In its Airport Economics Manual (2), the Inter- national Civil Aviation Organisation (ICAO) recommends that its members base their charges (a) Article 90(1) on the maximum take-off weight (MTOW) of the aircraft. The landing charge is defined as follows: (11) Article 90(1) of the Treaty states that ‘in the case of public undertakings and undertakings to which ‘Charges and fees collected for the use of runways, Member States grant special or exclusive rights, taxiways and apron areas, including associated Member States shall neither enact nor maintain in lighting, as well as for the provision of approach force any measure contrary to the rules contained and aerodrome control.' in this Treaty, in particular to those rules provided for in Article 6 and Articles 85 to 94'. (6) The charge is imposed to cover all ‘operation and maintenance costs, and administrative costs at- (12) Decree-law No 246/79 confers on ANA the tributable to those areas and their associated exclusive right to administer the airport facilities at vehicles and equipment, including the expense of Lisbon, Oporto, Faro and the Azores. all labour, maintenance materials, power and fuels'. According to its articles of association, ANA is a public undertaking within the meaning of Article (d) The main arguments of the Portuguese 90(1) of the Treaty. authorities and ANA (13) Moreover, Article 21 of Decree-law No 246/79 (7) The Portuguese authorities justify the differentia- states that the State is responsible for approving the tion of charges according to the origin of the flight prices and charges proposed by ANA. on the grounds that: ANA’s current pricing policy is therefore based on (1) See recitals 1 and 2. both legislative provisions (Decree-laws Nos 246/79 (2) Document 9562. 1991 ICAO. and 102/90) and regulatory provisions (Decrees 16. 3. 1999 EN Official Journal of the European Communities L 69/33 Nos 38/91 and 24/95) and was established by the position held by ANA can therefore also be felt in Government by order in Council No 352/98. this market. These legislative and regulatory provisions can therefore be regarded as State measures within the meaning of Article 90(1). (16) Of the seven airports administered by ANA, only three currently handle a significant volume of intra-Community traffic (Lisbon, Oporto and Faro). (17) These seven airports are interchangeable only to a (b) Article 86 limited extent and each can therefore be regarded as a distinct geographic market. The relevant market The airlines operating domestic or intra- Community scheduled or chartered flights to and (14) The relevant market is the market in services from Portugal are obliged to use the airports linked to access to airport infrastructures for which administered by ANA. The airports at Lisbon, Faro, a fee is payable, i. e. the operation and maintenance Oporto and the Azores are not interchangeable, of the runways, taxiways and aprons and approach since they are hundreds of kilometres away from guidance. each other and each has its own, well-defined catchment area, corresponding to a different tourist region: Lisbon airport serves the capital and the As the Court of Justice of the European Commu- centre of the country, Oporto the north, Faro the nities has held in the ‘Port of Genoa case' (3), the south and Santa Maria, Ponta Delgada, Horta and organisation of port activities for third parties at a Flores the Azores archipelago. In addition, the single port may constitute a relevant market within existing road and rail links cannot be considered a the meaning of Article 86. Likewise, the Court viable alternative transport link between Lisbon, considered piloting services in the Port of Genoa to Faro and Oporto. constitute the relevant market in its judgment in ‘Corsica Ferries II' (4). The only international airports that could serve the same geographic area, Madrid and Barcelona The Court based its reasoning on the fact that, if an airports, being more than 600 km away from the operator wishes to offer a transport service on a Portuguese mainland airports and, moreover, not given maritime route, access to port installations linked by an adequate road or rail infrastructure, do situated at either end of that route is essential to not constitute a realistic alternative. the provision of the service. This reasoning can easily be transposed to the air Lisbon and Madrid can, however, be regarded as transport sector and access to airports. The market competitors where an airline uses one or other of definition is the same as that applied in the them as a hub airport. It should be noted, though, Commission Decision 95/364/EC of 28 June 1995 that flights of this type are a negligible proportion relating to a proceeding pursuant to Article 90(3) of of the total volume of traffic at Lisbon. the Treaty (5) on the system of discounts on landing charges in operation at Brussels National Airport.