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Terms of Use at Copenhagen Airport found Discriminatory

21. december 2011

On 21 December 2011, the Danish Competition Council decided on a case concerning an airport’s application of dissimilar conditions to equivalent transactions which had as object to restrict competition.

The case regards the Danish airport Københavns Lufthavne A/S (CPH) which has erected a new low cost facility with six aircraft parking stands at Copenhagen Airport called CPH Go. The new facility is a cheaper and more efficient, but also a simpler alternative to the existing facilities at the airport. Operational advantages related to the airline carriers use of CPH Go, such as a turn around time of maximum 30 minutes and a discount of 20 DKK per passenger on passenger charges, allows for a competitive advantage.
CPH had adopted access criteria for the use of CPH Go in the Terms of use for CPH Go and had adopted a provision regarding baggage handling. The Terms of use and the provision formally treated all carriers equally. However, in reality only certain carriers could obtain access to CPH Go because of the Terms of Use and the provision regarding baggage handling.

The Competition Council found that that three access criteria in the Terms of Use and the provision regarding baggage handling de facto limited the use of the facility and that this limitation was not objectively justified. The three provisions concerned that:

  • Carriers with transfer passengers was not allowed to use CPH Go
  • Baggage containers may was not allowed in CPH Go
  • Only aircrafts of a certain size was allowed to use CPH Go

The Competition Council also found it discriminatory that CPH had decided that baggage from passengers/airlines using CPH Go could only to be handled at a (older) facility called BF2 that could not handle transfer baggage hereby effectively blocking transfer passengers/airlines from using CPH Go. On this basis, the Competition Council found that CPH applied dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, infringing section 11 (3), (3) of the Danish Competition Act and TEUF Article 102, (2) (c).

The Competition Council ordered CPH to revoke the access criteria regarding transfer passengers and baggage containers. Regarding aircrafts, CPH must change the access criteria so that aircrafts of the ICAO type A, B or C are allowed in CPH Go. Finally, CPH must change the provision regarding baggage handling so that transfer baggage now can be handled in CPH Go as well.

For further information, please contact Jacob Schaumburg Müller, +45 4171 5118.