HOW TO SUPPORT THE DEVELOPMENT OF NEW ROUTES 149 upper rebate, which was largely superior compared to the lower rebate accessible to foreign airlines17. It also applies to the provision of ground-handling services at a particular airport. If the Commission accepts that an undertaking in a dominant position is entitled to grant quantity discounts (as from 40% market share)18, they must, however, be justified on objective grounds, that is to say, they should enable the undertaking in question to make economies of scale. Moreover, based on the European jurisprudence, “the rules for calculating such discounts must not result in the application of dissimilar conditions to equivalent transactions with other trading parties”19. Rebates on airport charges based on the volume of passengers are allowed on the condition that the progression in the scale is proportional and that the system may be justified by the commercial revenues generated by the passengers brought by the airlines subject to the potential application of the EU Directive on airport charges and more restrictive national regulation, such as in France for instance. Indeed, in 2009, the Council and the European Parliament adopted the Directive on airport charges which had to be implemented into national law by 15 March 2011 for each Member State’s main airport, as well as airports with more than 5 million passengers per year20. This Directive imposes the principles of non-discrimination and transparency of airport charges, aiming also to achieve an agreement between the airport operator and the airlines on the level and system of charges at the airport at stake21. It authorises the modulation of airport charges for issues of general or public interest, such as the protection of the environment or the promotion of the development of the disadvantaged and outermost regions22. Such modulation must be grounded on relevant, objective and transparent criteria. Moreover, the level of airport charges may be differentiated based on the provided services, 17 A. LEPIECE, “Access to facilities in the transport sector: an overview of EU and national case law”, e-Competitions, July 2014. 18 For defining the relevant market, both the regulatory and competition authorities have relied heavily on examining the overlap of arbitrarily-defined catchment areas to define the number of airports within a certain drive- -time. Oxera drafted an interesting report on competition between airports for ACI. Report accessible on: https:// www.oxera.com/publications/the-continuing-development-of-airport-competition-in-europe/. 19 CJEU, judgment of 29 March 2001, Portugal v. Commission, C-163/99, paragraphs 50 and 51. 20 OJ L70, 14/03/2009, p. 11. 21 For more details, see A. LEPIECE, “The new EC Directive on airport charges”, Journaal LuchtRecht, November 2009, pp. 24-33. 22 Article 3 of the Directive on airport charges, idem.
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