Hellenic Institute of International and Foreign Law, n°22, Ant. Sakkoulas (Athènes) - Bruylant (Bruxelles), 2005, 498 p.

Les obligations de service public dans les lignes aériennes et les aéroports

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At a time when the European Commission is launching a public consultation on airport policy (see IP/06/467 of 6 April 2006) and when the dispute over airport charges before the French Conseil d’Etat is beginning to feed into the French Council of State, the publication of Kostis Kostopoulos’ thesis is timely. Although it was defended in 2003, under the direction of Professor Poillot-Peruzzetto, it has lost none of its topicality.

As the author points out in his introduction (which we may regret being a little short), the theme dealt with is a perfect illustration of the more general theme of the search for a balance between public service and free competition in activities of an economic nature. It is this balance that is reflected in the plan of the work, which is divided into two parts.

The first part of the report highlights the recognition of public service in airlines and airports under Community competition law. M. Mr Kostopoulos then makes an interesting distinction between air transport and airport transport, taking the view, first of all, that public service obligations are defined by the aviation regulations more as a derogation from the principle of free access than as an end in itself, to such an extent that not only is the system optional and targeted (for the operation of certain routes which must first be identified as being in the general interest) but it must also be supplemented by the framework for action by the Member States through Community control of State aid, whether sectoral or regional aid. The analysis of Article 4 of Regulation No 2408/92 is in this respect usefully compared with the French regulation on the intervention fund for airports and air transport (Decree No 99/811). On the other hand, public service obligations at airports are more appropriately understood by Community law as a form of economic activity aimed at development. However, it must be noted that the author’s demonstration is nevertheless based on the need to enable airports to carry out their particular task, within the meaning of Article 86(2) of the EC Treaty, and that, consequently, it is also the preservation of the public service which is at the heart of Community action in this field when it comes to authorising a system of airport charges or limitations on the provision of groundhandling services or the exercise of traffic rights.

Nevertheless, since public service must be reconciled with the requirements of competition law, the second part of the work focuses on the conditions of operation of lines subject to public service obligations in a competitive environment. The objective of Community law here is, after all, a classic one. It is twofold. The first is to ensure that air passengers receive an adequate service. To this end, the rules requiring the reliability and economic viability of carriers, the affordability of fares and the proper and transparent allocation of slots are carefully analysed. Secondly, the aim is to eliminate distortions of competition between airlines by establishing and enforcing the requirements of Articles 81 and 82 EC with regard to air carriers’ behaviour and practices, such as code-sharing (joint operation of a flight) and computer reservation systems (CRSs), frequent flyer programmes or so-called interlining systems (substitution of airlines on a given flight) developed under the aegis of the International Air Transport Association (IATA). The author does not fail to base his developments on the Commission’s decision-making practice and the relevant Community case law, the former being somewhat more extensive than the latter.

The thesis is intended to be useful, to use the expression used at the conclusion of the book. No doubt it will be useful in order to shed light on the developments which the European Community’s air and airport policy is likely to undergo in the short and medium term.