2000/122/EC: Commission Decision of 5 January 2000 on the application of Article 9 of Council Directive 96/67/EC to Düsseldorf Airport (Flughafen Düsseldorf GmbH) (notified under document number C(1999) 5067) (Text with EEA relevance) (Only the German text is authentic)
14. 2. 2000 EN Official Journal of the European Communities L 39/57 COMMISSION DECISION of 5 January 2000 on the application of Article 9 of Council Directive 96/67/EC to Düsseldorf Airport (Flughafen Düsseldorf GmbH) (notified under document number C(1999) 5067) (Only the German text is authentic) (Text with EEA relevance) (2000/122/EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports (1), and in particular Article 9(5) thereof, Having regard to the request of 5 October 1999 for approval of the decision of the German authorities, and after consulting those authorities, After consulting the Advisory Committee, Whereas: 1. Scope of the exemption notified by the Government of the Federal Republic of Germany 1. 1. Notification by the German authorities (1) the German authorities notified a request the Government of By letter received by the Commission on 5 October for 1999, approval of the Federal Republic of Germany of 30 September 1999 to grant Düsseldorf airport (Flughafen Düsseldorf GmbH) an exemption to: the decision of - ban self-handling, and - reserve for Düsseldorf Airport (Flughafen Düsseldorf GmbH) the provision of services to third parties, for the categories of services referred to in items 4. 1 (with regard to the physical handling of freight, whether (2) (3) (4) incoming, outgoing or being transferred, between the air terminal and the aircraft), 5. 4 (with regard to the loading and unloading of the aircraft and the transport of passengers and baggage between the aircraft and the terminal), 5. 5 and 5. 6 of the Annex to the Directive. This exemption is granted, on the basis of Article 9(1)(b) and (d) of the Directive, from 1 January 2000 It follows the Commission until 31 December 2001. a Decision derogation granted by the authorities of the Federal Republic of Germany on 9 October 1997. concerning 1998 (2) January 14 of of Pursuant to Article 9(3) Commission published an extract notification in the Official Journal of Communities of 26 October 1999 (3) interested parties to submit their comments. the Directive, from the the said the European and invited In accordance with Article 9(5) of the Directive, the Commission consulted the German Government on its draft evaluation on 24 November 1999 and the German comments by letter of 29 authorities gave November 1999. their Basis of the exemption rules on access to the groundhandling The general services market are set out in Articles 6 and 7 of the Directive. These provisions clearly state the principle that most categories of groundhandling services should be opened up to the maximum possible extent. For an airport with a volume of traffic like that of Düsseldorf the Directive provides for recognition of the right to selfhandle from 1 January 1998 and opens up the handling market to third parties from 1 January 1999. However, the specific in order to take into account situation and role of an airport, and in particular the safety, security, space and capacity constraints which (1) OJ L 272, 25. 10. 1996, p. 36. (2) OJ L 173, 18. 6. 1998, p. 45. (3) OJ C 307, 26. 10. 1999, p. 3. L 39/58 EN Official Journal of the European Communities 14. 2. 2000 located impose services complete liberalisation for can arise in certain parts of most airports, the Directive four does not categories of in a the airport, but does particularly sensitive area of require a minimum degree of liberalisation of both selfhandling and the supply of services to third parties. concern ramp-handling, baggage- These handling, and certain field-handling mail-handling operations. categories air-side, freight- and i. e. space and capacity constraints prevent (5) Article 9 of Council Directive 96/67/EC also takes in certain very special cases, account of the fact that, severe the opening-up of the market to the degree provided for. In such cases, exemptions may be granted on a temporary basis time to overcome the constraints. These exemptions can therefore be only intended to exceptional automatically give airports an extra transitional period in addition to that already provided for in Article 1 of the Directive. to give the airports and are not in nature (6) An exemption can be granted only on the basis of specific space or capacity constraints. This is the basis on which the German authorities granted an initial exemption on 9 October 1997. A Commission Decision of 14 January 1998 (4) confirmed that exemption, but restricted it to a period ending no later than 1 January 2000. This is also the basis, in conjunction with Article 9(6) of the Directive, on which the German authorities have granted the exemption to which this Decision refers, in accordance with Article 3 of the German Verordnung über Bodenabfertigungsdienst auf Flugplätzen und zur Vorschriftení (5) ˜nderung weiterer transposing Directive 96/67/EC into national law. luftrechtlicher (8) No new exemption has been requested extending the the German exemption granted by the decision of authorities of 17 April 1998 which hitherto permitted the restriction of aircraft cleaning (6. 1), cabin cooling and snow removal (6. 2), and the rearrangement of the cabin (6. 3) to two users and two service-providers, so these services will be opened up to unrestricted competition from 1 January 2000. 2. Constraints referred to by the German authorities (9) The exemption granted by the German authorities is based on space and capacity constraints resulting from the fire in the terminal on 11 April 1996, the increase from the in space requirements which would result opening-up of the market to more than one operator, and the encountered proposed reconstruction and restructuring plan. implementing problems in (10) It relies on the arguments presented in the file drawn up by Düsseldorf airport: - Nachtrag zum Maßnahmenplan des Antrages auf Flughafen Verlängerung der Düsseldorf GmbH, September 1999 Freistellung der - Antrag auf Verlängerung Flughafen Düsseldorf GmbH, Juli 1999 der Freistellung der - Dokumentation des Maßnahmenplans, Oktober 1998 und April 1999 - Netherlands Airport Consultant BV study entitled liberalising groundhandling to Consequences of permit several service providersí, July 1997. There is no need to go back over the fact, already recorded in the Commission Decision of 14 January 1998 (6), that the data indicating a shortage of space relate exclusively to the 1996 fire and that no structural problem is cited in justification of the present situation and the resulting exemption. 2. 1. The aftermath of the fire of 11 April 1996 (12) terminal building and The fire destroyed the central rendered the three piers (A, B and C) unusable. As it is not possible to transit through the central building: 1. 2. Situation regarding handling at Düsseldorf airport (11) (7) to the exemption granted by the German Pursuant authorities on 17 April 1998 following the Commission Decision of 14 January 1998, the activities covered by the exemption to which this Decision refers are already to covered by an exemption allowing the airport itself and prohibit and freight-handling, transport of passengers baggage between the aircraft and the terminal (5. 4), engine starting (5. 5), and aircraft movements (5. 6). Thus the exemption to which this Decision refers extends the exemption granted with respect to such services. selfhandling the reserve to to (4) OJ L 173, 18. 6. 1998, p. 45. (5) Bundesgesetzblatt 1997, Part I, No 82, 16 December 1997, p. 2885. (6) OJ L 173, 18. 6. 1998, p. 45. 14. 2. 2000 EN Official Journal of the European Communities L 39/59 - several gate positions, including all those on pier B, have to be used solely as remote positions, thus generating a substantial increase in the bussing of passengers across the apron, - all arrivals initially had to be concentrated in pier C, the only pier with an operational baggage reclaim system, (16) - passenger embarkation modules (D and E) had to be installed to the east and west; these structures took up space on the ground and resulted in rather long bus transfers, - three positions (50, 51 and 60) had to be closed completely to allow the rebuilding of pier B and the storage of equipment used in the building works. parking. The multiplication of equipment and the need to divert around the works area each time equipment is moved causes traffic problems in the vicinity of the terminal. Moreover, the airport, all available space is fully used, in particular in the two temporary departure modules (D and E). in this part of The comprehensive restructuring plan presented by the German authorities in support of the initial exemption request in 1998 provided for this infrastructure to come into operation in 2002, but was nevertheless supposed to allow the groundhandling market to be opened up at the beginning of 2001. The Commission Decision of 14 January 1998 forced the airport to open the market up early, as from 1 January 2000, on the grounds in particular of the space which should have been freed up when piers A and C were opened, the progress of work on pier B, and the new west apron. (13) However, it was possible for pier C and the the central building to be corresponding part of thus permitting the reopened in November 1996, the baggage reclaim system. Three reactivation of by belts were additional suppressing equipment parking areas on the airport apron. installed luggage here (14) According to the file presented by the German authorities in support of the initial exemption request, pier A was to be opened in spring 1998, with the full reopening of 7 to 8 positions, thus ending the need for some of the passengers arriving at this pier to be bussed to pier C to reclaim their baggage and reducing the frequency of passenger bussing. At the same time, there would be a substantial reduction in the equipment needed for the embarkation of passengers at pier A, thus reducing congestion on the apron and freeing space for the parking of new handling equipment. (15) Work on pier B, on the other hand, a of part large along with is scheduled to finish in June 2001. These are major works concerning the airport. Pier B had to be completely most of demolished, the corresponding terminal. This pier and the central part of the terminal will be completely rebuilt, the terminal being enlarged, the pier widened along its entire length, and an extra level added in order to accommodate Schengen and non-Schengen passenger flows. Although the fire occurred in 1996, the time required for insurance assessments, project studies and demolition works have resulted, in a situation which is still temporary and which causes considerable disruption both to passenger access to gate lounges and to the transport of groundhandling equipment across the apron. The use of numerous gate parking positions as remote positions obliges the airport to make a large number of bus transfers. Additional baggage transport equipment was also needed, which affected traffic and three years later, (17) According to the German authorities, it is no longer feasible to open up the market within the time allowed on account of problems which have arisen in connection with the schedule for the various works. 2. 2. Difficulties encountered during the reconstruction works 2. 2. 1. Pier A (18) According to the report presented by the German authorities, although a large part of pier A was brought back into operation in April 1998, as provided for in the provisional the restructuring plan, demolition of departure area could not begin until pier A came into operation, step by step, as areas became available, work on the apron level of pier A and the corresponding passenger bridges could be completed. so that, (19) Moreover, to enable passengers to reach the airport terminal via pier A, without having to transit through the works terminal C, and because the progress of resulted in belts 9 to 12 being moved, it was necessary to create an arrivals structure at pier A. These measures were taken largely in response to intense lobbying from Lufthansa and its partners, the main users of this pier, in order to improve conditions for their passengers. (20) To fit out this eastern part of pier A it was necessary to convert aircraft stand 80 into a baggage reclaim hall and to construct a collection hall open to passengers here. The arrivals hall was then connected to the rest of the terminal by a passenger tunnel at gate 37 (halls 5/6). L 39/60 EN Official Journal of the European Communities 14. 2. 2000 (21) The construction of these additional structures on the apron caused a deterioration in the traffic situation in this area, mainly affecting baggage transport, as the traffic generated by the reopening of the positions increased. (22) According to the German authorities, this unplanned reorganisation of pier A, at the request of the carriers, prevented the improvement in the situation forecast by the first Commission Decision. External circumstances and operational requirements resulted in a reduction of 500 m2 in equipment storage areas. Moreover, this reduction was accompanied by the closure of aircraft stand 80 and a reduction in the size of the adjacent stand. 2. 2. 2. Pier B (23) (24) The construction site plans presented in support of the first exemption, relating to the construction of pier B terminal, no and the associated part of longer correspond to the current It was planned to limit the works area in order to maximise the groundhandling area equipment. the central situation. available parking for The measures planned to overcome the constraints relating to groundhandling services form part of the wider-ranging Airport 2000 plusí reconstruction and enlargement plan. As the works progressed, it proved necessary for the airport authorities to adapt the plans in order to meet passenger service requirements. This resulted in the reconfiguration of pier B and the ensuing increase in the shortage of space for storing equipment during the rest of the works. The shortage of space at this pier is estimated at 3 000 m2. This reorganisation also makes it impossible to reopen the road junction under this pier, an essential step towards improving traffic on the apron, within the time allowed. (25) According to the German authorities, the new exemption for the period up to 31 December 2001 is justified by this extension of the work on pier B, which cannot be completed before July 2001, and which cannot therefore be truly operational until late autumn 2001. 2. 2. 3. Apron extension west (26) The Airport 2000 plusí project also comprises an extension of the apron which should allow new aircraft positions to be developed, but should also provide space for parking handling equipment. The main extension consisted in the construction of an apron extension to the west, half of which would be used to create new the other half being used to store aircraft positions, handling equipment on over 14 000 m2. However, these works were referred to in the plans presented at as merely complementary to the other the time measures identified overcome intended constraints, as, according to the file presented at the time, these works were not due to be finished until the end of 2000, i. e. after the period of exemption granted by the Commission in its Decision of 14 January 1998. the to (27) However, construction of this new area has been delayed both by technical problems relating to drainage and by administrative regarding the authorisation from the Ministry responsible for water protection. According to the file presented by the the new German authorities, infrastructure cannot be brought into service until the end of 2001 at the earliest. these delays mean that complications (28) (29) Thus the exemption is based on the fact that the airport cannot, in general, find additional space on account of the adaptations made necessary both by the additional infrastructure in pier A to improve passenger conditions at the request of the users and by the reorganisation of pier B. by the forecasts, restructuring Compared with the initial the total space shortage for the three piers has risen by more than 3 500 m2. On the other hand, some 1 600 m2 has been gained the administrative buildings, plus 2 000 m2 at the deicing area on the western apron (cargo area) and 300 m2 on the eastern part of the apron. For the airport as a whole, a net gain of just 350 m2 has been possible, compared with the situation at the beginning of 1998 (7), which is insufficient to permit the market to be opened up to the extent planned. around apron 3. Reactions of the interested parties (30) Following the Commission’s publication of an extract from the notification by the German authorities, and in the the Directive, accordance with Article 9(3) of various invited to submit interested parties were comments. felt One carrier the figures given in the airport’s exemption file failed to demonstrate either the need to alter the plan of appropriate measures or the shortage of space. It was astonished that the airport had not reported a shortage of office space, and believed additional space could be found by making use of the vacated army huts and the area freed by the reduction in the airport’s own equipment needs following the arrival of a second service-provider. According to the same user, it will not be possible to provide much space for the new service-provider, which will therefore have (7) Antrag auf Verlängerung der Freistellung der Flughafen Düsseldorf GmbH, July 1999, Table 2, p. 11. 14. 2. 2000 EN Official Journal of the European Communities L 39/61 limit to employ only a reduced amount of specialised equipment in certain types of aircraft, something which will its market opportunities. The user also proposes that certain equipment be pooled, or that the newcomer buy existing equipment. Lastly, it finds the 40 % market share suggested by the NACO study at the time of the Commission’s first Decision to be far too optimistic, and believes a scenario based on a mere 1 % market is plausible. service-provider second share the for (31) (32) 4. Evaluation of the exemption in the light of the provisions of Directive 96/67/EC 4. 1. The rules in force concerning groundhandling 4. 1. 1. The scope for limiting access to the market Council Directive 96/67/EC provides for the market to be opened up to different extents as a function of the way groundhandling services are provided (selfhandling or service suppliers) and the level of the airport. traffic at allows The general rules governing groundhandling for the service categories listed in the German authorities’ notification are set out in Articles 6(2) and 7(2) of the Directive. Those rules have been incorporated into the the German regulations provisions of Article 3(2) of transposing the Directive. The Directive a Member State to restrict selfhandling to not less than two users. The latter must be selected on the basis of relevant, objective, transparent and non-discriminatory criteria. Likewise, the number of groundhandling service suppliers may be restricted to two, in which case the suppliers must be chosen through a public tender procedure. On this basis Düsseldorf airport is required, to Annex 5 to the Verordnung über pursuant Bodenabfertigungsdienste zur auf ˜nderung weiterer luftrechtlicher Vorschriften of 10 December 1997 (8), which transposes the Directive into German law, to open up the market for groundhandling services to a second service supplier and to permit selfhandling by two users for the services in respect of which the number of service suppliers or selfhandling users can be limited pursuant to Articles 6(2) and 7(2) of the Directive. Flugplätzen und (33) However, where specific space or capacity constraints, arising in particular from the rate of utilisation of space or space occupation, make it impossible to authorise selfhandling or the provision of services to third parties to the extent provided for by the Directive, the Member State concerned may, on the basis of Article 9(1)(b) and (d), restrict the provision of groundhandling services to third parties to a single supplier and ban selfhandling or restrict it to a single user. (34) Article 9(6) of the Directive restricts the duration of the exemptions granted and provides that any further exemption must be the subject of a new procedure. Exemptions granted pursuant to Article 9(1)(d) may not exceed three years. Those granted pursuant to Article 9(1)(b), which reserve the provision of services to a single supplier, may not exceed two years and may be extended by a single period of not more than two years. This is the framework within which this exemption has been granted by the German authorities. However, under Article 9(2) any such exemption must: - specify the category or categories of groundhandling services for which the exemption is granted and the specific constraints of available space or capacity which justify it, - be accompanied by a plan of appropriate measures to overcome the constraints. Moreover, pursuant to Article 9(2), it must not: - unduly prejudice the aims of the Directive, - give rise to distortions of competition, - extend further than necessary. (35) As stated by the Commission, inter alia, in its Decisions of 14 January 1998 on Frankfurt and Düsseldorf airports (9), the main aim of the Directive is to liberalise groundhandling services. The restrictions imposed on third parties are restrictions on the freedom of such parties to supply such services. By analogy with state measures restricting the freedom to supply services (10), measures likely to exclude or prohibit the activities of service suppliers or, in the present instance, those of users wishing to selfhandle, even if they apply without distinction to national service suppliers or users and to those from other Member States, must be justified by (9) Commission Decisions of 14 January 1998 (OJ L 173, 18. 6. 1998, pp. 32 and 45). (8) Bundesgesetzblatt 1997, Part I No 82, 16 December 1997, p. (10) Judgments of 25 July 1991, MØdiawet [1991] ECR I-4007 and 2885. C-76/90, Säger: Dennemeyer, [1991] ECR I-4221. L 39/62 EN Official Journal of the European Communities 14. 2. 2000 overriding public-interest requirements and not by economic factors and must, moreover, be in proportion to the aims pursued. 4. 1. 2. Procedure (36) The German authorities have undertaken to make the entry into force of the exemption decision subject to the Commission’s Decision. to put them. forward overcome taken is appropriate to those constraints, and the Its measures examination drew upon the studies provided by the German authorities, its visit to Düsseldorf airport on 20 October 1999, and the technical assessment made at its the Commission took request by Aerotec. Finally, account of the comments made by the airport and the German Government concerning its analysis, and in particular those concerning space constraints due to the delay in the reorganisation of the terminal on account of the changes which had to be made to the working plan. (37) As stated in its two Decisions on the airports at the Commission must Frankfurt and Düsseldorf (11), direct its examination towards: - the existence and extent of the constraints justifying the exemption and the inability to open up the market to the extent provided for by the Directive; only space and/or capacity constraints may be taken into account, - the plan of appropriate measures intended to overcome those constraints; that plan must be credible and unconditional and include a timetable for the implementation of those measures, 4. 2. Examination of the constraints referred to by the German authorities 4. 2. 1. Background structural (41) As stated above, there is no need to go back over the absence of space problems at Düsseldorf airport and the fact that the impossibility of opening up the market to the extent provided for in the Directive, is a result to which the German authorities exclusively of the problems caused by the fire in April 1996. refer, - conformity with the principles of compliance with the aims of the Directive, absence of distortions of competition, and the extent of the measure referred to in Article 9(2) of the Directive. (42) In its Decision of 14 January 1998, the Commission recognised that at that time there was a shortage of space at the airport which justified the granting of an for which exemption in respect of exemption was requested. services the (38) The aim of granting an exemption is not to give the airport a further adaptation period in addition to that already granted by Article 1 of the Directive. It must permit the airport to overcome the specific constraints which it may encounter when the market is opened up. Any exemption must therefore be examined in the light of the specific constraints put forward in justification of the impossibility of opening up the market within the in accordance with the time allowed. case-law of the European Justice of Communities, any exception must be interpreted strictly and the scope of any exemption must be determined on the basis of the purpose of the measure in question. In addition, the Court of (39) This exemption must be examined in the light of these considerations. (40) In accordance with Article 9(4) of the Directive, the Commission has made a detailed analysis of the alleged space and capacity constraints, whether the decision that (43) Unlike the earlier exemption, which was the subject of the Commission Decision of 14 January 1998, this exemption does not cover the categories of services listed in item 6 of the Annex to the Directive relating to the external and internal cleaning of the aircraft and the the airport removal of snow and ice. The fact authorities can now use certain old British army huts adjacent to the airport and the creation of the deicing area on the eastern part of the apron enables them to comply with the conditions of the Directive by fully liberalising the market for these services. The decision to open these services up to competition, but not those covered by this exemption, is justified by the new deicing area, the small size of the area freed up, and the mobility of the equipment used for these services. The old military huts airport boundary and the vehicles have to cross a very busy road, which would be inconceivable for the heavy, slow equipment used for ramp-handling services such as pusher tugs. located outside the are (11) See footnote 9. (44) The Commission’s examination of this exemption must therefore be limited to changes in space and capacity 14. 2. 2000 EN Official Journal of the European Communities L 39/63 since its Decision of 14 January 1998 and the reasons is for which the German authorities claim that impossible for Düsseldorf airport to fully implement the proposed plan and the conditions laid down in that Decision. it (47) The space requirements for groundhandling operations must be examined in detail for each of the piers and parts of the terminal affected by the works and for the western part of the apron. 4. 2. 2. Implications of changes in the reconstruction of the airport (48) (45) As the works stated above, the problems mentioned by the German authorities are the result of the fire of April 1996 and of in progress which, while forming part of a wider-ranging plan to extend the airport, are a direct result of that fire. These works do not adding new infrastructure or renovating an existing terminal, they primarily concern the almost total reconstruction of a building which was destroyed by fire. This brings with it quite specific constraints, due in particular to the need: airport by simply extend the P i e r A the first exemption indicated that The file presented by the German authorities in support of this pier was scheduled to be brought into operation in spring 1998. The reduction in operations on this part of the apron was expected to free up space which could be used to store groundhandling equipment. However, the new possibility for passengers to disembark at pier A made it in response to intense lobbying from the necessary, companies operating at this pier, to provide a passenger arrivals facility at this point. The Commission recognises that this not only meets an operational requirement by facilitating passenger access but also helps to reduce congestion on the apron by ending bus transfers to pier C as had been necessary since the fire. - to first demolish the existing buildings, which in turn requires most of the existing infrastructure to be evacuated, before starting to rebuild (this is true in particular of pier B and the corresponding central part of the terminal building), - to proceed in stages (pier B and the adjacent part of the terminal building must be rebuilt before the central part of the terminal can be demolished) and combine demolition and building works on a single site, (49) However, this arrangement made it necessary to build the arrivals structure, which in turn made it necessary to close stand 80). the nearest position (aircraft Moreover, the arrival of passengers at the new structure at pier A means that their baggage also arrives here rather than at pier C, thus replacing passenger bus traffic on the apron with baggage traffic here. During its visit the Commission verified that full use is made of the space available, in particular at former aircraft stand 80. - carry out these works in the middle of an airport which must continue to operate. (50) Thus the reduction in the number of bus movements achieved as a result of direct access to pier A has to a large extent been offset by the arrival of baggage at the new facility. This has been compounded by the closure of the corresponding space in the adjacent area. Thus the situation at this part of the airport has deteriorated. stand 80 and reduction aircraft in a (46) requires is clear, entire works The advanced programme logistics, and problems arising in part of the works or the terminal can have an impact on the part of programme as a whole. following the It Commission’s visit in connection with this exemption on 20 October 1999, that the entire operation of the airport is affected by these works and that all the space left free by the works on the apron has been used to build temporary structures in order to provide basic services to carriers and their passengers. In addition to departure modules D and E, structures facilitating the arrival of passengers and their baggage have been added, in particular at point A, at the request of carriers. Baggage transfer is effected in large part by vehicles with integral conveyor belts which nose onto the baggage reclaim belts alongside the terminal building. These vehicles are large and heavy, but they reduce the congestion of roadways and unloading areas caused by conventional trolleys. P i e r B (51) Reconfiguration of the pier following the decision to adapt the Airport 2000 plusí project to the changing needs of carriers and their passengers and in order to facilitate passenger transfer has involved an extension of the building site. The the pier, and therefore of Commission’s assessment shows that: - the state of the works will not allow even part of the area currently occupied by the building site to L 39/64 EN Official Journal of the European Communities 14. 2. 2000 be used to park groundhandling equipment by 1 the date on which the current January 2000, exemption expires, as foreseen by the Decision of 14 January 1998; the rebuilding of the pier has only just started, and it will not be possible to open the road junction to traffic for many months, (57) The plan of appropriate measures presented in support of the first exemption also provided, in a second stage, for the creation of a new apron to the west. Half of the new apron, which is to be of a considerable size, will accommodate new aircraft positions, while the other half can be devoted to the storage of groundhandling equipment (on more than 14 000 m2). - the buildings site has been kept as small as possible while ensuring safe conditions; apart from the roadway used by construction plant, there is only enough space to store a very small amount of building equipment, - the aircraft are separated from the building site only by the road used by groundhandling equipment, and there is no room for any additional parking at this point. service It is therefore clear that it is not now feasible to free up any extra space at pier B at least until the end of the works, i. e. early summer 2001, before work starts on finishing the inside of the pier in preparation for its planned opening in autumn 2001. Completion of construction work on pier B is to be followed by the construction of passenger bridges on the the movement and storage of equipment at this point for an estimated period of five months. significantly restrict and this will ramp, (52) (53) (54) It is therefore not possible to free up any space at pier B beyond the 7 500 m2 which have already been made available. A p r o n (55) (56) Extension of the plan of the apron formed part of appropriate measures presented in support of the first exemption. The apron was initially to be extended to the east during 1999 with the main aim of creating a deicing area. However, the extra 4 000 m2 this has provided cannot be allocated to the parking of groundhandling equipment during periods when deicing is required. Only a few hundred square metres can be used throughout the year. As stated above, the creation of the deicing area and the occupation of certain old British army huts have enabled the airport authorities to open up aircraft cleaning and deicing operations to competition. The choice of these operations, which are covered by item 6 of the Annex to the Directive, is justified by the creation of the deicing area, the small size of the vehicles concerned, which have to be parked outside the area and cross a busy road. the area freed up, and the mobility of While the authorisation to build this apron extension does not in itself pose a problem, the scale of the works requires a major modification of the entire drainage system on the whole of the western part of the airport. This not only holds up the building works as such, it authorities also responsible for water protection, which in turn depends on the results of environmental tests. The time needed to perform these tests and to assemble the required documentation means that the authorisation is unlikely to be obtained before spring 2000. authorisation from the requires 4. 3. Plan of appropriate measures (58) (59) In accordance with the provisions of Article 9(2) of the Directive, the file submitted by the German authorities identifies a plan of appropriate measures to overcome the constraints cited. The construction of the new apron to the west, which had originally been planned for the end of the year, would provide more than 14 000 m2 for the parking of groundhandling equipment. However, the problems which have arisen in connection with the need to reorganise the drainage make the schedule for these works on the apron uncertain. be and credible unconditional, The plan of measures to overcome the constraints cited must be accompanied by a timetable for its implementation. The Commission whose implementation within the time allowed is uncertain to constitute a plan of appropriate measures within the meaning of Article 9 of the Directive. consider cannot plan and a of the needed (60) However, the German authorities have presented other measures aimed at overcoming the constraints. These measures are linked to the completion of the work on the terminal. The pier B and the central part of future for space freeing-up groundhandling equipment depends on the commitment by the consortium overseeing the construction works to finish those works by autumn 2001. This commitment is firm and is subject to very substantial penalties for late completion. Work on the building site is currently continuing 24 hours a day, and occupies 600 persons per day. This number is set to rise to 1 000 persons per day in January 2000. As is operational, at the end of the period covered by the exemption, the space freed up not only around pier B the terminal soon as 14. 2. 2000 EN Official Journal of the European Communities L 39/65 to be able accommodate will groundhandling equipment. However, the airport authorities no longer plan to demolish the two temporary departures modules (D and E) but to convert them into accommodation for groundhandling equipment. The surface area and height of these modules will allow their rapid conversion. to (with a reduction of just 5 % in airport equipment). If require selfhandle, Lufthansa were approximately 50 % of the equipment currently used by the airport. The reduction in the airport’s requirements would be of the order of 25 %, so 25 % additional space would be required. it would (61) This alternative solution, irrespective of the completion the western apron extension and of any other of administrative authorisation, will allow the market to be opened up to the extent provided for in the Directive at the end of the period covered by the exemption and can therefore be a plan of considered to constitute appropriate measures within the meaning of Article 9(2) of the Directive. (64) Thus it is not possible, given the acute space problems at the airport, to allow a second service supplier to operate or a user to selfhandle at the airport in respect of the operations covered by the exemption, and the restriction of liberalisation to aircraft cleaning and deicing is perfectly justified. Thus the exemption granted by the German authorities does not extend further than necessary in relation to these services. (62) (63) 4. 4. Compliance with the criteria of Article 9(2) of the Directive The exemption notified by the German authorities covers freight loading and unloading and the various ramp-handling operations such as marshalling aircraft, assistance to aircraft parking, moving aircraft, engine starting, and the transport of passengers and baggage. these operations require a large number of Most of pieces of equipment, some of them slow and heavy (such as pusher tugs), which have to be parked near the aircraft positions and cannot, as has been suggested, be parked near the old army huts, i. e. outside the airport’s reserved area and on the far side of a busy road. It is also necessary to take account of the impact which the arrival of a second service supplier will have on the already highly congested traffic around the piers. of and schedules concerned of leads flight operations the Commission to officially restrict the Examination groundhandling the Commission to estimate that the arrival of a second service supplier would require nearly 22 % additional space in the most realistic hypothesis of that supplier handling some 15 % of the market. If the decision is taken to effectively open up the market, it would not be for the future service-provider’s market share, as has been suggested, its by imposing the limitation and specialisation of equipment on grounds of insufficient space. All it can do is evaluate the impact of the arrival of operators. Moreover, as it has reiterated in its various Decisions, the arrival of a new operator only affects the equipment requirements of an existing operator when the incoming operator has a market share of something between 10 and 15 %. Below that threshold, all the equipment of the new operator must be considered additional to that of the airport. In the case of selfhandling by one user, 25 % additional space would be required for LTU to cover its peak loads in view of the difficulties encountered in Likewise, carrying out the various works and the substantial modifications which these have entailed, the schedule of works presented, in particular the part concerning pier B and the central part of the terminal, is an adequate response to the known constraints and the period of exemption. Thus the principles Directive are respected. set out in Article 9(2) of the 5. Conclusion The exemption granted by the German authorities to Düsseldorf airport is based on the consequences of the fire which destroyed most of the terminal in April 1996 and completely disrupted the operation of the airport. Reconstruction, which forms part of a more ambitious development plan, is made particularly difficult by the need to proceed in stages, the need to demolish the damaged buildings first, and the fact that the works are located in the middle of an airport which must continue to operate. The scale and complexity of the works and the essential link between the various stages are compounded by technical and operational difficulties which have delayed the full entry into service of the various piers and prevented the freeing-up of space for groundhandling equipment as previously planned. The full use of the space available, either by groundhandling equipment or by existing difficulties with regard to parking and traffic on the impossible to accommodate a new apron make it essential building materials, and the (65) (66) L 39/66 EN Official Journal of the European Communities 14. 2. 2000 operator, whether a selfhandler or a service-provider, before the end of the period covered by the exemption, Article 2 HAS ADOPTED THIS DECISION: This Decision is addressed to the Federal Republic of Germany. Article 1 Done at Brussels, 5 January 2000. The exemption granted on 30 September 1999 to Düsseldorf airport on the basis of Article 9(1)(b) and (d) of the Directive, as notified to the Commission on 5 October 1999, is hereby approved. For the Commission Loyola DE PALACIO Vice-President