Judgment delivered on 29 September 2015
Airport Terminal A ApS
The Minster for Transport and Building and the Danish Transport and Construction Agency
Intervener: Københavns Lufthavne A/S
Question concerning public aviation regulation prevents the construction of a competing terminal at Copenhagen Airport
Terminal A wished to lease a plot of land from Københavns Lufthavne A/S to construct a competing passenger terminal. Københavns Lufthavne A/S refused to lease the plot, which caused Terminal A to refer the issue to the competition authorities.
The competition authorities consulted the Minister for Transport and Building. On 10 July 2015, the Minister made a final decision in accordance with section 2(2) of the Danish Competition Act (konkurrenceloven). According to this provision, the provisions in the Act on, among other things, abuse of a dominant position, do not apply where an anti-competitive practice is a direct or necessary consequence of public regulation. As the Minister found this to be case, Terminal A claimed that the Minister's decision be repealed.
The Supreme Court stated, among other things, that the applicable aviation legislation is based on a two-party relationship between the State as the one party and the holder of the permit to operate a public airport as the other party, as well as between such permit holder as the one party and the airport users as the other party. Against this background, the permit granted to operate Copenhagen Airport implies that there is one permit holder that owns, operates and, if relevant, extends Copenhagen Airport, and which must then, in return, meet extensive obligations concerning the operation, capacity and infrastructure of the airport. If the permit holder fails to meet these obligations, an order may be issued, and the permit may be revoked in the last resort.
The Supreme Court further found that the tariff regulations for Copenhagen Airport did not provide for an exception for a competing passenger terminal at the airport. Accordingly, Terminal A would not have access to collecting airport tariffs. The Supreme Court thus agreed that Københavns Lufthavne A/S's refusal to let Terminal A lease a plot in order to construct a competing passenger terminal was a necessary consequence of public regulation, and that this was also in accordance with EU law.
The High Court had dismissed the case, as no final administrative decision had been made at the time of the High Court's hearing of the case.