JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

16 January 2008 (*)

(Competition – Abuse of dominant position – Allegation of excessive charges applied by the operator of Athens International Airport – Rejection of the complaint – No Community interest)

In Case T‑306/05,

Isabella Scippacercola, residing in Brussels (Belgium),

Ioannis Terezakis, residing in Brussels,

represented by A. Krystallidis and G. Stylianakis, lawyers,

applicants,

v

Commission of the European Communities, represented by P. Hellström, A. Nijenhuis and F. Amato, acting as Agents,

defendant,

APPLICATION for annulment in part of the Commission’s decision of 2 May 2005 pursuant to Article 7(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), rejecting complaint No COMP/D3/38469 concerning the levy of certain charges by the operator of Athens International Airport at Spata and by Olympic Fuel Company,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, M.E. Martins Ribeiro and K. Jürimäe, Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 12 June 2007,

gives the following

Judgment

 Legal framework

 Community legal framework applicable to complaints relating to infringements of the competition rules of the EC Treaty

 Legal framework applicable until 30 April 2004

1        Article 3 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) provided:

‘1. Where the Commission, upon application or upon its own initiative, finds that there is infringement of Article [81 EC] or Article [82 EC], it may by decision require the undertakings or associations of undertakings concerned to bring such infringement to an end.

2. Those entitled to make application are:

(a)      Member States;

(b)      natural or legal persons who claim a legitimate interest.

…’

2        That provision was repealed by Article 43(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), applicable, according to Article 45 of that regulation, from 1 May 2004.

3        Article 6 of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81 EC] and [82 EC] (OJ 1998 L 354, p. 18) provided:

‘Where the Commission, having received an application made under Article 3(2) of Regulation No 17 …, considers that on the basis of the information in its possession there are insufficient grounds for granting the application or acting on the complaint, it shall inform the applicant or complainant of its reasons and set a date by which the applicant or complainant may make known its views in writing.’

4        That provision was repealed by Article 18 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), applicable, according to Article 20 of that regulation, from 1 May 2004.

 Legal framework in force from 1 May 2004

5        Article 7 of Regulation No 1/2003 which, according to Article 45 of that regulation, applies from 1 May 2004, provides:

‘1. Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article 81 [EC] or 82 [EC], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end ...

2. Those entitled to lodge a complaint for the purposes of paragraph 1 are natural or legal persons who can show a legitimate interest and Member States.’

6        Regulation No 773/2004 entered into force on 1 May 2004, in accordance with Article 20.

7        According to Article 7 of Regulation No 773/2004:

‘1. Where the Commission considers that on the basis of the information in its possession there are insufficient grounds for acting on a complaint, it shall inform the complainant of its reasons and set a time-limit within which the complainant may make known its views in writing. The Commission shall not be obliged to take into account any further written submission received after the expiry of that time-limit.

2. If the complainant makes known its views within the time-limit set by the Commission and the written submissions made by the complainant do not lead to a different assessment of the complaint, the Commission shall reject the complaint by decision.

3. If the complainant fails to make known its views within the time-limit set by the Commission, the complaint shall be deemed to have been withdrawn.’

8        Article 8 of Regulation No 773/2004 provides:

‘1. Where the Commission has informed the complainant of its intention to reject a complaint pursuant to Article 7(1) the complainant may request access to the documents on which the Commission bases its provisional assessment. For this purpose, the complainant may however not have access to business secrets and other confidential information belonging to other parties involved in the proceedings.

2. The documents to which the complainant has had access in the context of proceedings conducted by the Commission under Articles 81 [EC] and 82 [EC] may only be used by the complainant for the purposes of judicial or administrative proceedings for the application of those Treaty provisions.’

 Greek legal framework

9        Article 1 of Law No 2338/1995 (FEK A’ 202/14.9.1995) ratified the agreement concluded on 31 July 1995 between the Greek State and a consortium of companies concerning the development of Athens International Airport at Spata (‘the agreement’). Article 3 of Law No 2338/1995 created Athens International Airport SA (‘AIA’). AIA’s shareholders are the Greek State, with 55% of the capital, and the abovementioned consortium of companies holding 45% of the capital and having the right to appoint the Chief Executive Officer.

10      According to Article 2(2)(1) and Article 4(1) of the agreement, AIA was granted a 30-year exclusive right to carry out the design, financing, construction, completion, commissioning, maintenance, operation, management and development of Athens International Airport at Spata (‘Athens airport’).

11      According to Article 3(2)(1) of the agreement:

‘The Greek State shall ensure that, during the contract period:

(a)      no new or existing airport will be developed as, or improved or upgraded into, an international airport within a radius of 100 kilometres of Syntagma Square, Athens, with the benefit of Greek State support, before the 20th anniversary of the commencement date;

and furthermore

(b)      no new airport will be developed as an international airport within a radius of 50 kilometres of Syntagma Square, Athens, with the benefit of Greek State support, until and unless more than 50 million passengers by air (arrivals including transits, and departures) use the airport in any continuous period of 12 months.’

12      Pursuant to Article 14 of the agreement, the various charges for the services provided by Athens Airport are set by AIA. According to that provision, the charges for air activities are set by reference to AIA’s costs, allowing for a maximum return of 15%.

13      Law No 2065/1992 (FEK A’ 113) imposed a passenger departure fee, known also as ‘the Spatosimo’, of EUR 20 for an international flight and EUR 10 for a domestic flight for passengers departing from Greek airports, the receipts from which had to be used for the modernisation or construction of airports in Greece.

14      Article 26(1) of the agreement extended the Spatosimo as a ‘contribution to the construction of Athens airport’ until at least 2014.

15      Law No 2892/2001 (FEK A’ 46) amended Law No 2065/1992 by increasing the Spatosimo with effect from 1 March 2001 to EUR 22 for international flights (outside the European Economic Area (EEA)) and to EUR 12 for flights within the EEA.

 Facts and administrative procedure

16      On 5 July 2002, Mr Koeune, acting on behalf of ‘a number of [Athens] airport users’, lodged a complaint with the Commission’s Directorate General (DG) for Competition, which was registered as Case COMP/D3/38469. The complaint, based on Articles 82 EC and 86 EC, challenged, inter alia, the Spatosimo imposed by Law No 2065/1992 and claimed that certain charges imposed on air companies and passengers by AIA were excessive.

17      By letter of 28 August 2002, the Commission acknowledged receipt of the complaint and asked Mr Koeune, inter alia, to produce the power of attorney of the Athens airport users on whose behalf he had lodged the complaint.

18      By letter of 4 October 2002, Mr Koeune informed the Commission that the powers of attorney in question would be sent separately by registered courier. In addition, he claimed that the Spatosimo was discriminatory.

19      By letter of 28 November 2002, the Commission informed Mr Koeune that the group of Athens airport users on whose behalf the complaint had been lodged had not yet been clearly identified, and that it had not yet received the powers of attorney requested. The letter also stated, by way of an initial position within the meaning of the judgment of the Court of First Instance in Case T‑64/89 Automec v Commission [1990] ECR II‑367, paragraphs 45 to 47, that Articles 81 EC and 82 EC did not apply to the charges complained of as the charges were akin to taxes imposed by a Member State and those Treaty provisions applied only to the conduct of undertakings.

20      By letter to the Commission of 24 December 2002, Mrs Scippacercola, an individual user of Athens airport, identified herself as one of the persons on whose behalf the complaint of 5 July 2002 had been lodged, and attached the power of attorney in favour of Mr Koeune. In the same letter, Mrs Scippacercola opposed the initial position taken by the Commission in its letter of 28 November 2002.

21      By letter of 29 January 2003, Mrs Scippacercola formally requested the Commission, pursuant to Article 232 EC, to adopt a decision regarding the infringement of Articles 86 EC and 82 EC consisting in the airport’s exclusive rights and the excessive charges imposed by it; the infringement of Article 87 EC consisting in the State aid granted to Athens airport; and the opening of a procedure under Article 226 EC against the Greek Government in respect of the Spatosimo.

22      By letter of 10 February 2003, the Commission informed Mrs Scippacercola that only the first aspect of her formal request relating to the alleged infringements of Articles 86 EC and 82 EC fell within the competence of the DG for Competition and that the two other aspects had been communicated to the DG for Energy and Transport. The letter stated that the DG for Competition would respond to the aspect that fell within its competence by 29 March 2003.

23      By letter of 18 February 2003, Mrs Scippacercola provided the Commission with further information in relation in particular to the security charge and to the passenger terminal facilities charge. The letter stated also that ‘all charges except [the Spatosimo] imposed on passengers and on air companies [were] fixed by the [Athens] airport administration’.

24      By letter of 26 February 2003, Mrs Scippacercola pointed out that the complaint of 5 July 2002 and the letters of 24 December 2002 and 18 February 2003 concerned not only the Spatosimo but also the other charges imposed on passengers and air companies by AIA.

25      By letter to Mrs Scippacercola of 28 February 2003, the Commission’s DG for Energy and Transport stated that, following a modification to Law No 2065/92 by Law No 2892/2001, the Spatosimo was no longer discriminatory since it had been fixed at EUR 12 for all destinations within the European Union.

26      By letter to Mrs Scippacercola of 19 March 2003, the DG for Competition announced, after observing that the Spatosimo had been fixed at EUR 12 for all destinations within the EEA, that it intended to take no further action on the complaint in so far as it related in particular to the excessive nature of that tax, since it did not concern the conduct of an undertaking for the purposes of Articles 81 EC and 82 EC. So far as the other charges at issue in the complaint and, in particular, the security charge, were concerned, the Commission claimed that Mrs Scippacercola had not shown that she had a legitimate interest within the meaning of Article 3(2) of Regulation No 17.

27      By letter of 12 April 2003, Mrs Scippacercola asked the Commission to undertake an in-depth examination of the airport charges in the light of the definition of excessive prices adopted by the Court of Justice in Case 27/76 United Brands v Commission [1978] ECR 207.

28      By letter of 26 May 2003, the Commission informed Mrs Scippacercola of its decision of 22 May 2003 not to take further action on the complaint of 5 July 2002 in so far as it related to practices attributable to the Greek State, namely the Spatosimo.

29      By a further letter of 26 May 2003, the Commission informed Mrs Scippacercola that the practices criticised in the complaint of 5 July 2002 which had been attributed to AIA did not appear to fall within the scope of Article 82 EC or to justify the opening of an inquiry.

30      By letter of 12 June 2003, Mrs Scippacercola provided the Commission with further information concerning the charges levied by AIA and reiterated her view that those tariff practices fell within the scope of Article 82 EC.

31      By letter of 15 October 2003, the Commission informed Mrs Scippacercola that it maintained its assessment of AIA’s tariff practices that had been set out in its letter of 26 May 2003, and announced that a letter would be sent pursuant to Article 6 of Regulation No 2842/98.

32      By letter of 27 November 2003, Mr Terezakis, also an individual user of Athens airport, lodged a complaint at the Commission’s Secretariat-General concerning (1) the abusive use of subsidies granted by the Cohesion Fund for the construction of Athens airport; (2) the excessive charges applied by AIA in the light of the judgment in United Brands v Commission, cited in paragraph 27 above; and (3) the incompatibility of the Spatosimo with Community law.

33      By letter of 23 February 2004, the Commission informed Mr Terezakis that ‘[his] complaint [had] been registered under reference number 2004/4134, SG(2004) A/1724’.

34      By letter to Mrs Scippacercola of 25 March 2004 pursuant to Article 6 of Regulation No 2842/98, the Commission announced its intention to take no further action on the complaint of 5 July 2002.

35      By letters of 8 April and 5 May 2004, Mrs Scippacercola requested the Commission to reconsider its provisional position regarding the complaint, and in particular in relation to the security charge, the passenger terminal facilities charge and the charge for parking cars at the airport. The letter of 5 May 2004, which was also signed by Mr Christofidis, also formally requested the Commission, pursuant to Article 232 EC, to take a formal decision within one month from the date of receipt of the letter.

36      By letters of 8 May 2004, Mrs Scippacercola and Mr Christofidis informed the Commission that it was being requested to take a decision on the complaint of 5 July 2002 within two months.

37      By letter of 28 June 2004, Mrs Scippacercola sent the Commission further information on the construction and operation of Athens airport, concerning the costs and profits relating in particular to the security and car parking arrangements.

38      By letter of 2 July 2004, the Commission informed Mrs Scippacercola and Mr Christofidis that, in the light of the information provided in their letters of 5 and 8 May 2004, it had decided to carry out further investigation by addressing requests for information, in particular, to the Greek authorities and to AIA.

39      By letter of 15 July 2004, Mrs Scippacercola sent the Commission new information concerning the costs and profits in relation, in particular, to the security and car parking arrangements, to enable the Commission to assess the excessive nature of the charges imposed by AIA.

40      AIA replied to the Commission’s request for information by letter of 27 August 2004 and provided further information by letters of 27 September and 11 October 2004.

41      The Commission informed Mrs Scippacercola by letter of 5 October 2004 that it had received the replies to the requests for information referred to in paragraph 38 above.

42      By letter of 22 October 2004, Mrs Scippacercola and Mr Christofidis referred to certain matters already included in their letters of 5 May and 15 July 2004. That letter, and also Mr Christofidis’s letter of 26 October 2004, requested the Commission to make further enquiries about the costs incurred by AIA for the construction of Athens airport.

43      By letter of 12 January 2005, the Commission informed Mrs Scippacercola and Mr Christofidis, in accordance with Article 7(1) of Regulation No 773/2004, of its intention to reject the complaint of 5 July 2002. They were asked to submit any comments within one month from the date of receipt of the letter.

44      By letter of 13 January 2005, Mr Terezakis informed the Commission that he was joining in the complaint of 5 July 2002 made by Mr Christofidis and Mrs Scippacercola, and reminded the Commission that it had not responded to his own complaint No 2004/4134, SG(2004) A/1724 of 27 November 2003.

45      By letter of 26 January 2005 referring to the complaint of 5 July 2002 and to complaint No 2004/4134, SG(2004) A/1724 of 27 November 2003, Mr Christofidis, Mrs Scippacercola and Mr Terezakis submitted their comments to the Commission in response to the letter of 12 January 2005. They invited the Commission to reconsider its position and to carry out an in-depth investigation. They formally requested the Commission, pursuant to Article 232 EC, to take a final decision within two months.

46      By letter of 21 February 2005, the Commission informed Mr Terezakis that he could not ‘join’ in the complaint of 5 July 2002 made by Mrs Scippacercola and Mr Christofidis, as no such procedure was provided for in Regulations No 1/2003 and No 773/2004. The Commission also stated that the information about Athens airport which he had supplied on 27 November 2003 was not regarded as a formal complaint, because he had submitted it in his capacity as a Commission official using the Commission’s letterhead, by e-mail and internal mail.

47      By a further letter of 21 February 2005, the Commission informed Mrs Scippacercola and Mr Christofidis that it would not be in a position to adopt a final decision on the complaint of 5 July 2002 within the two months referred to in the letter of 26 January 2005. It announced that a final decision would be taken as soon as was reasonably possible.

48      By letter to the Commission of 4 March 2005, Mr Terezakis stated that he had never asked for authorisation to join in the complaint of 5 July 2002. He explained that, by his letter of 13 January 2005, he had wished to inform the Commission of its obligation to acknowledge receipt of the fax and letters that were mentioned in his letter. He maintained, furthermore, that he was one of the ‘users’ on whose behalf the complaint of 5 July 2002 had been launched by Mr Koeune, and that it was in his capacity as a European citizen and frequent flyer that he had supplied information on Athens airport. He noted that the Secretariat-General of the Commission had, moreover, registered his complaint of 27 November 2003.

49      By letter of 24 March 2005, Mrs Scippacercola, together with Mr Christofidis and Mr Terezakis, formally requested the Commission, pursuant to Article 232 EC, to take a final decision on the complaint of 5 July 2002 by 25 May 2005, stating that, in the absence of a decision by that date, they would bring actions based on Articles 232 EC and 288 EC.

 The contested decision

50      On 2 May 2005, the Commission adopted a decision pursuant to Article 7(2) of Regulation No 773/2004 rejecting complaint No COMP/D3/38469 of 5 July 2002 (‘the contested decision’). The contested decision was notified to the persons to whom it was addressed, Mrs Scippacercola and Mr Christofidis. Mrs Scippacercola received notification of the contested decision on 31 May 2005.

51      In the contested decision, the Commission examined the various charges disputed by the complainants, namely the passenger security charge, the passenger terminal facilities charge, the charges for supplying aviation fuel and for aircraft parking, and the airport car parking charge. It set out the following conclusions in paragraph 141 of the contested decision:

‘… there are insufficient grounds for acting on [the] complaint. This is based on the [following] reasons … :

(a)      With regard to the application to passengers of an allegedly excessive airport security charge:

–        Article 82 [EC] is not applicable, because by carrying out security checks on the passengers departing from the Athens International Airport of Spata, AIA exercises essential functions of the State, and in any event

–        it is not in the Community interest to open an in-depth investigation.

(b)      With regard to the application to passengers of an allegedly excessive passenger terminal facilities charge, it is not in the Community interest to open an in-depth investigation.

(c)      With regard to the application to airlines of allegedly excessive charges for aviation fuel:

–        The complainants do not have a legitimate interest within the meaning of Article 3(2) of Regulation 17/62 or of [Article] 7(2) of Council Regulation 1/2003, and in any event

–        it is not in the Community interest to open an in-depth investigation.

(d)      With regard to the application to airlines of allegedly excessive charges for the parking of aeroplanes:

–        The complainants do not have a legitimate interest within the meaning of Article 3(2) of Regulation 17/62 or of [Article] 7(2) of Council Regulation 1/2003, and in any event

–        it is not in the Community interest to open an in-depth investigation.

(e)      With regard to the application to passengers of allegedly excessive charges for parking cars at the airport, it is not in the Community interest to open an in-depth investigation.’

 Procedure and forms of order sought by the parties

52      By application lodged at the Registry of the Court of First Instance on 10 August 2005, the applicants brought the present action.

53      By letter of 31 July 2006, received at the Registry of the Court of First Instance on 4 August 2006, the applicants requested a derogation from the rule on the use of the language of the case laid down in Article 35(2) of the Rules of Procedure of the Court of First Instance. The Commission submitted its observations on that request on 24 August 2006.

54      By decision of 7 September 2006 of the President of the Fifth Chamber of the Court of First Instance, the request for a derogation from the rule on the use of the language of the case was rejected.

55      Upon hearing the Judge-Rapporteur, the Court of First Instance (Fifth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, invited the Commission to produce certain documents. The request concerned, inter alia, the non-confidential version of AIA’s reply of 27 August 2004 to the Commission’s request for information. The Commission complied with that request within the prescribed period.

56      By letter of 7 June 2007, sent to the Registry of the Court of First Instance by fax on the same date, the applicants made a further request for a derogation from the rule on the use of the language of the case for the purposes of the hearing. That request was rejected by decision of the President of the Fifth Chamber of the Court of First Instance on 7 June 2007.

57      The parties presented oral argument and their answers to the questions put by the Court at the hearing on 12 June 2007. At the hearing, the applicants were authorised to answer the questions of the Court in French.

58      The applicants claim that the Court should:

–        annul the contested decision to the extent that it refuses to open an in-depth investigation into AIA’s costs and revenues relating to the provision of passenger security services, passenger terminal facilities and car parking services in order to establish whether the charges levied by AIA constitute an abuse of a dominant position;

–        order the Commission to pay the costs.

59      The Commission contends that the Court should:

–        dismiss the application with regard to Mr Terezakis as inadmissible;

–        dismiss the application for annulment as unfounded;

–        order the applicants to pay the costs.

 Admissibility

 Arguments of the parties

60      The Commission claims that the action is inadmissible in so far as it was brought by Mr Terezakis. The addressees of the contested decision were only Mrs Scippacercola and Mr Christofidis.

61      It recalls that Mr Terezakis is not mentioned in the initial complaint lodged by Mr Koeune or in the subsequent exchanges between Mrs Scippacercola and the Commission. Mr Koeune never replied to the Commission’s repeated requests to identify which clients he was representing. The Commission accepted Mrs Scippacercola as a complainant because she identified herself as such in her letter of 24 December 2002, in which she referred to the Commission’s letter of 28 November 2002 and to which she attached the power of attorney which she had given to Mr Koeune to lodge the complaint of 5 July 2002.

62      The Commission observes that Mr Terezakis lodged a separate complaint at the Secretariat-General of the Commission on 27 November 2003, which was registered as No 2004/4134, SG(2004) A/1724. That complaint was not the subject of the contested decision. Further, the Commission’s services acknowledged receipt of ‘market information’ provided by Mr Terezakis in so far as it was relevant to the present matter, but noted explicitly in a letter of 21 February 2005 that this was not regarded as a formal complaint, as the information had been provided by Mr Terezakis in his capacity as a Commission official and by using internal communication channels.

63      It was only in his letter dated 13 January 2005, that is to say, after the Commission’s letter of 12 January 2005 to Mrs Scippacercola and Mr Christofidis pursuant to Article 7(1) of Regulation No 773/2004, that Mr Terezakis expressed his wish to join in the complaint which they had lodged. The use in that letter of the expressions ‘je rejoins’ (I join) and ‘leur plainte’ (their complaint) shows that Mr Terezakis did not consider himself to be a party to the complaint of 5 July 2002.

64      It follows that Mr Terezakis has no legal standing to challenge the contested decision, since he is not an addressee of that decision and did not establish in the application that he was directly and individually concerned by it.

65      The applicants claim that this action is entirely admissible.

 Findings of the Court

66      It has been consistently held that it is in the interests of the proper administration of justice and of the correct application of Articles 81 EC and 82 EC that natural or legal persons who are entitled to make a request pursuant to Article 3(2)(b) of Regulation No 17 should be able to institute proceedings in order to protect their legitimate interests if their request is not complied with either wholly or in part (Case 26/76 Metro v Commission [1977] ECR 1875, paragraph 13; Case 210/81 Schmidt v Commission [1983] ECR 3045, paragraph 14; Case T‑37/92 BEUC and NCC v Commission [1994] ECR II‑285, paragraph 36; and Case T‑193/02 Piau v Commission [2005] ECR II‑209, paragraph 38). That case-law can be applied to natural or legal persons who are entitled to make a complaint on the basis of Article 7(2) Regulation No 1/2003, which replaced Article 3(2)(b) of Regulation No 17 from 1 May 2004.

67      In the present case, it must be noted first of all that, on 5 July 2002, Mr Koeune, acting on behalf of ‘a number of [Athens] airport users’, lodged complaint No COMP/D3/38469 with the Commission.

68      Next, it must be noted that, by letter to the Commission of 24 December 2002, Mrs Scippacercola identified herself as one of the persons on whose behalf the complaint of 5 July 2002 had been lodged, and attached the power of attorney granted to Mr Koeune.

69      Finally, the contested decision was addressed, inter alia, to Mrs Scippacercola.

70      In view of the case-law cited in paragraph 66 above, the action is therefore admissible in relation to Mrs Scippacercola.

71      Next, it must be observed that the applicants have brought one and the same action. It has consistently been held that, where one and the same application is involved, a finding of admissibility in relation to one applicant means that there is no need to consider whether the other applicants are entitled to bring proceedings, since it is sufficient that at least one of the applicants fulfils the conditions laid down in Article 230 EC (Case C‑313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraph 31; Case T‑12/93 CCE de Vittel and Others v Commission [1995] ECR II‑1247, paragraph 44; Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 61; and Case T‑317/02 FICF and Others v Commission [2004] ECR II‑4325, paragraph 40).

72      It follows from all the foregoing that the action must be declared admissible without there being any need to consider whether Mr Terezakis is entitled to bring proceedings.

 Substance

 Preliminary observations

73      It must be noted, first, that the applicants dispute the lawfulness of the contested decision only so far as concerns the security charge, the passenger terminal facilities charge and the car parking charge. The applicants do not, therefore, dispute the contested decision in so far as it relates to charges for the provision of aviation fuel (paragraphs 93 to 108 of the contested decision) or the charge for the provision of aeroplane parking services (paragraphs 109 to 119 of the contested decision).

74      Next, it must be noted that the fundamental reason given in the contested decision for the Commission’s rejection of the complaint of 5 July 2002 is the lack of Community interest in opening an in-depth investigation (paragraphs 39 to 43, 78 and 79, 92 and 136 to 141 of the contested decision). It is, moreover, the only reason given in the contested decision for rejecting the complaint as to the allegedly excessive passenger terminal facilities charge and charge for parking cars at the airport (paragraph 141 of the contested decision). As far as the alleged infringement related to the security charge is concerned, the Commission mentions another reason for rejecting the complaint, in addition to the lack of Community interest, namely the fact that the practices in question do not fall within the scope of Article 82 EC (paragraph 141 of the contested decision).

75      The applicants rely on four pleas in law in the application. The first plea in law alleges an error of law and a manifest error of assessment in that the Commission did not carry out a proper comparison of the costs and revenues related to the provision of security services, the provision of airport terminal facilities to passengers and the provision of airport car parking services, by failing to verify the reliability of the information supplied by AIA and by failing to examine one by one the economic and financial data submitted by the applicants. The second plea in law alleges an infringement of Article 82 EC in that, first, the Commission considered that the security checks did not constitute an economic activity for the purposes of that provision and, second, the car parking services did not constitute a relevant market for the purposes of that provision. The third plea in law alleges an error of law concerning the application to passengers of a higher terminal facility charge for those on intra-Community and international flights than for those on domestic flights, and the application to passengers on scheduled flights of a terminal facility charge and a security charge which are not applied to those travelling on charter flights. Finally, the fourth plea in law alleges an infringement of Article 253 EC and a departure from established rights and procedures.

 First plea in law, alleging an error of law and a manifest error of assessment in that the Commission did not carry out a proper comparison of the costs and revenues related to the provision of security services, the provision of airport terminal facilities to passengers and the provision of car parking services, by failing to verify the reliability of the information supplied by AIA and by failing to examine one by one the economic and financial data submitted by the applicants

 Arguments of the parties

76      The applicants claim that, contrary to the requirements laid down in United Brands v Commission (cited in paragraph 27 above), the Commission failed to carry out a proper comparison of the costs and revenues related to the provision of passenger security services, the provision of terminal facilities to passengers and the provision of car parking services. In addition, by concluding that it was not in the Community interest to open an in-depth investigation, the Commission did not pay due attention to the content of the complaints, in particular complaint No 2004/4134, SG(2004) A/1724.

77      First, as regards the security charge, the applicants observe that an activity performed in the public interest should not produce excessive profits. According to the applicants’ calculations, however (which take into account a construction cost in respect of the security installations of EUR 3 454 966, security staff salary costs in 2002 of EUR 2 164 433 and annual income from passenger security activities of EUR 14 429 559 in 2002), AIA realises a capital return equal to 7 236% on its security activities. The charges levied, which do not bear any reasonable relationship to the costs incurred by AIA, are thus excessive prices, contrary to Article 82 EC (United Brands v Commission, cited in paragraph 27 above, paragraphs 249 to 252).

78      The comparisons and explanations put forward by the Commission in paragraphs 65 to 68, 70 and 71 of the contested decision are inconclusive, as they concern other airports unconnected with the relevant market in the present case. The Commission itself stated, in paragraph 69 of the contested decision, that ‘simple comparisons of levels of charges at different airports cannot be considered to be sufficient evidence to demonstrate excessive pricing’.

79      In addition, the applicants observe that the security charge was increased from EUR 1.29 when Athens airport opened in March 2001 to EUR 2.44 in October 2002 owing to the events of 11 September 2001. In view of this sharp increase of almost 90%, the applicants request the Court to order the Commission to explain on what economic grounds AIA raised the security charge to EUR 2.44.

80      In view of the foregoing, the applicants take the view that the Commission was not entitled to conclude in paragraph 77 of the contested decision that none of the elements submitted by the complainants appears sufficiently persuasive to justify the opening of an in-depth investigation.

81      The applicants also dispute the Commission’s finding in paragraph 74 of the contested decision that ‘a comparison between costs for and revenues from [the] security activities as supplied by AIA … in the confidential version of its reply [to the request for information], to which the complainants cannot be granted access, does not produce a surplus … [with the result that] there is no evidence of excessive prices that would justify any further investigation’. The applicants claim that the Commission did not state why information concerning the revenues from the passenger security services and the related fixed and variable costs constituted confidential information for the purposes of Article 8(1) of Regulation No 773/2004. They note that, in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), the Commission, by letter of 26 June 2003, had already granted Mrs Scippacercola access to the Cohesion Fund application made by the Greek authorities for assistance for the construction of Athens airport, which contains information concerning the cost of the airport’s passenger security systems. The security charge is known and AIA publishes its staff costs on its website and also monthly and annual statistics on the numbers of passengers served at the airport. Such information is not, therefore, confidential.

82      The applicants therefore ask the Court to order the Commission to provide them with the figures supplied by AIA in respect of security costs and revenues for the years 2001 to 2004 so that they can be verified and assessed in the light of the applicants’ arguments to demonstrate that AIA realises excessive profits. They observe that AIA acted as the authority responsible for implementation of an airport project financed by Community funds and carried out in the common interest. Accordingly, the information concerning the airport’s construction costs cannot be within the scope of business secrets or constitute confidential information. In addition, as regards AIA’s staff costs, as to which the global figure (EUR 27 147 458) can be found on the internet (www.aia.gr), the Commission has not explained how AIA’s business secrets would be affected if the information concerning the breakdown by category of activity were to be given to the applicants.

83      The irregularities in connection with the construction of Athens airport referred to in complaint No 2004/4134, SG(2004) A/1724 are relevant not only from the viewpoint of the Cohesion Fund grant but also from that of the competition rules since AIA’s pricing strategy is based on an airport construction cost of EUR 1 746 167 573. The applicants recall that Commission Decision C(96) 1356 of 23 May 1996 granting Cohesion Fund assistance mentions a construction cost of EUR 973 303 266, whereas the Commission refers in the defence (paragraphs 38 and 51) to a cost of EUR 2 100 000 000. Furthermore, Mr Terezakis informed the Commission of the disappearance of VAT receivables from AIA’s balance sheet for 2001 and the following years. The applicants therefore ask the Court of First Instance to order the Commission to submit documentary evidence establishing the true construction cost of Athens airport in order to determine the exact annual depreciations to be taken into account for the purpose of comparing the costs and revenues of the services concerned. In the reply, the applicants further request the Court to order the Commission to state the names of the undertakings to which AIA paid EUR 2 100 000 000.

84      As regards the exchange of correspondence between Mr Terezakis and the Commission following complaint No 2004/4134, SG(2004) A/1724, the applicants submit that, by ignoring information supplied by the complainant concerning the deletion of the VAT receivables from AIA’s balance sheets, by deciding to suspend the correspondence with the complainant, and by adopting Decision C(2005) 3243 of 1 September 2005 slightly reducing the Cohesion Fund assistance rather than envisaging the recovery of the entire assistance, the Commission has not complied with its Communication COM(2002) 141 to the European Parliament and the European Ombudsman of 20 March 2002 on relations with the complainant in respect of infringements of Community law, or its Communication COM(2002) 725 of 16 May 2003 on better monitoring of the application of Community law.

85      Second, as regards the passenger terminal facilities charge, the applicants claim that the comparisons and explanations put forward by the Commission in paragraphs 83 to 86 of the contested decision are inconclusive, as the Commission itself stated in paragraph 85 of the contested decision that ‘simple comparisons of levels of charges at different airports cannot be considered to be sufficient evidence to demonstrate excessive pricing’.

86      The applicants note that, according to their calculations (which take into account a fixed cost related to passenger terminal facilities of EUR 200 000 000, salary costs of EUR 25 529 845 in 2001 and EUR 27 147 498 in 2002, and revenue of EUR 60 911 666 in 2002 and EUR 63 099 829 in 2003), AIA realised a capital return on the written-down fixed costs of 329% in 2002, 451% in 2003 and 523% in 2004. The charges levied, which do not bear any reasonable relationship to the costs incurred by AIA, are thus excessive prices, contrary to Article 82 EC (United Brands v Commission, cited in paragraph 27 above, paragraphs 249 to 252).

87      The information on which the applicants based their calculations was brought to the Commission’s attention during the administrative procedure. The figure of EUR 200 000 000 for the fixed costs relating to passenger terminal facilities is the result of the conversion of DEM 370 000 000, which corresponds to the total cost of the works relating to the passenger terminal facilities referred to in appendix 7 to the Greek authorities’ application for assistance from the Cohesion Fund. The applicants request the Court of First Instance to order the Commission to provide them with the figures available to the Commission if the applicants’ calculations are disputed, and also the names of the constructors and of the suppliers concerned.

88      The applicants observe also that the Commission never took into account the particulars provided in complaint No 2004/4134, SG(2004) A/1724 of 27 November 2003, whereby the Commission was informed inter alia that AIA had manifestly manipulated the operational expenses and interest payments and that it had dealings with non-existent ‘affiliated undertakings’. Nor did the Commission take into account the letters containing information on AIA’s abusive practices which were sent to the DG for Competition between June and October 2004 (letters of 28 June, 15 July, 22 October and 26 October 2004), and which were mentioned in the letter of 26 January 2005. The Commission was wrong also to take the view that the construction cost of the airport was EUR 2 100 000 000 (see paragraph 83 above).

89      Third, as regards the car parking charge, the applicants claim that, according to their calculations (which take into account a construction cost in respect of the car park of EUR 753 206, as mentioned in the Greek authorities’ application for assistance from the Cohesion Fund, practically no salary costs and revenues of EUR 9 289 247 in 2002), AIA realises an annual capital return which is higher than the total cost invested. The charges levied, which do not bear any reasonable relationship to the costs incurred by AIA, are thus excessive prices, contrary to Article 82 EC (United Brands v Commission, cited in paragraph 27 above, paragraphs 249 to 252).

90      The Commission contends that this plea in law should be rejected.

 Findings of the Court

–       Preliminary observations

91      It has consistently been held that Article 3(2) of Regulation No 17 does not give a person making an application under that article the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement (Case 125/78 GEMA v Commission [1979] ECR 3173, paragraphs 17 and 18; Case C‑119/97 P Ufex and Others v Commission [1999] ECR I‑1341, paragraph 87; Case T‑24/90 Automec v Commission [1992] ECR II‑2223, paragraph 75; and Joined Cases T‑185/96, T‑189/96 and T‑190/96 Riviera Auto Service and Others v Commission [1999] ECR II‑93, paragraph 48). The same applies to a person making a complaint under Article 7(2) of Regulation No 1/2003, which replaced Article 3(2) of Regulation No 17 from 1 May 2004.

92      The Commission, to which Article 85(1) EC entrusts the task of ensuring application of the principles laid down in Articles 81 EC and 82 EC, is responsible for defining the orientation of Community competition policy and implementing it. In order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it, and has a discretion for that purpose (Ufex and Others v Commission, cited in paragraph 91 above, paragraph 88, and Case C‑449/98 P IECC v Commission [2001] ECR I‑3875, paragraph 36).

93      The Commission is entitled in particular to refer to the Community interest in order to determine the degree of priority to be applied to the various complaints brought to its notice (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 85, and Joined Cases T‑9/96 and T‑211/96 Européenne automobile v Commission [1999] ECR  II‑3639, paragraph 28). The fact that the Commission may reject a complaint for lack of Community interest is, moreover, explicitly acknowledged in Regulation No 1/2003 (recital 18).

94      The discretion which the Commission has in that respect is not unlimited, however (Ufex and Others v Commission, cited in paragraph 91 above, paragraph 89, and Européenne automobile v Commission, cited in paragraph 93 above, paragraph 29).

95      First, the Commission must consider attentively all the matters of fact and of law which the complainant brings to its attention (Schmidt v Commission, cited in paragraph 66 above, paragraph 19; Case 298/83 CICCE v Commission [1985] ECR 1105, paragraph 18; Joined Cases 142/84 and 156/84 BATand Reynolds [1987] ECR 4487, paragraph 20; Ufex and Others v Commission, cited in paragraph 91 above, paragraph 86; and IECC v Commission, cited in paragraph 92 above, paragraph 45).

96      Second, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint. Since the reasons stated must be sufficiently precise and detailed to enable the Court of First Instance effectively to review the Commission’s use of its discretion to define priorities, the Commission must set out the facts justifying the decision and the legal considerations on the basis of which it was adopted (Ufex and Others v Commission, cited in paragraph 91 above, paragraphs 90 and 91; Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 85; and Européenne automobile v Commission, cited in paragraph 93 above, paragraph 29).

97      Finally, it must be noted that the judicial review of decisions to reject complaints must not lead the Court to substitute its assessment of the Community interest for that of the Commission but focuses on whether or not the contested decision is based on materially incorrect facts, or is vitiated by an error of law, a manifest error of assessment or misuse of powers (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 80; Case T‑387/94 Asia Motor France and Others v Commission [1996] ECR II‑961, paragraph 46; and Européenne automobile v Commission, cited in paragraph 93 above, paragraph 29).

98      In the present case, the Commission rejected the complaint of 5 July 2002 after concluding that the practices complained of did not represent a sufficient Community interest to justify an in-depth investigation (paragraphs 39 to 43, 78, 79, 92, 140 and 141 of the contested decision). In that regard, it found that there was insufficient likelihood of being able to establish the existence of the infringements complained of, taking into account the limited amount of evidence provided by the complainants and the unconvincing nature of that evidence, the results of the Commission’s initial inquiry and the complex nature of the investigation that would still be needed in order to establish whether or not there was an infringement (paragraphs 78, 92 and 140 of the contested decision). It therefore took the view that the efforts required to establish, with any certainty, the existence of an infringement would be disproportionate in the light of the small likelihood of the existence of an infringement and of its low significance as regards the functioning of the common market (paragraphs 79, 92 and 140 of the contested decision).

99      By the present plea, the applicants essentially make three submissions. The first calls in question the comparison made in the contested decision between the charges levied at Athens airport and those imposed by other airports (paragraphs 100 to 105 below). The second relates to the alleged failure to take sufficient account in the contested decision of the evidence submitted by the complainants during the administrative procedure (paragraphs 106 to 125 below). The third concerns the fact that the Commission did not verify the information provided by AIA (paragraphs 126 to 133 below).

–       The comparison between the charges levied at Athens airport and those imposed by other airports

100    First, it must be borne in mind that in United Brands v Commission, cited in paragraph 27 above (paragraph 250), the Court of Justice held that ‘a price which is excessive because it has no reasonable relation to the economic value of the product supplied’ could constitute an abuse within the meaning of Article 82 EC. In that regard, ‘the questions to be determined are whether the difference between the costs actually incurred and the price actually charged is excessive, and, if the answer to this question is in the affirmative, whether a price has been imposed which is either unfair in itself or when compared to competing products’ (paragraph 252).

101    Second, it must be noted that, in their complaint of 5 July 2002, the complainants themselves based their allegation as to the excessive nature of the security charge, passenger terminal facility charge and car parking charge on a comparison of the charges imposed at Athens airport with those at other European airports.

102    In the present case, so far as the various charges at issue are concerned, the Commission examined the charges which apply at other established airports in the European Community in paragraphs 70, 86 and 135 of the contested decision, and compared the charges at Athens airport and those imposed at Amsterdam, Barcelona, Brussels, Frankfurt, Madrid, Paris (Roissy) and Rome (Fiumicino) airports.

103    By so doing, the Commission carefully considered the elements of the complaint and complied with the requirements set out in United Brands v Commission, cited in paragraph 27 above, of comparing the charges imposed and the price of competing services.

104    Furthermore, the applicants do not dispute the material accuracy of the information contained in paragraphs 70, 86 and 135 of the contested decision. Even though an infringement of Article 82 EC cannot be established on the basis of a simple comparison of levels of charges payable at different airports, as the Commission correctly maintains in paragraphs 65 to 69, 84 and 85 of the contested decision, it must nevertheless be noted that the security charge, the passenger terminal facilities charge and the car parking charge at Athens airport are not in the higher band of similar charges payable at the other airports examined.

105    Contrary to the complainants’ submission in their complaint of 5 July 2002, the comparison with other European airports does not therefore provide any indication of the existence of excessive pricing in breach of Article 82 EC.

–       The alleged failure to take sufficient account of the evidence submitted by the complainants during the administrative procedure

106    In the first place, the complainants put forward various items of evidence during the administrative procedure to show that the charges covered by the present proceedings bore no reasonable relation to the economic value of the service supplied (United Brands v Commission, cited in paragraph 27 above, paragraph 250).

107    Thus, in their letters of 28 June 2004, 15 July 2004 and 26 January 2005, the complainants provided the Commission with estimates of the costs incurred by AIA for the provision of security services and passenger terminal facilities, and compared those estimates with the revenues which AIA is presumed to obtain from the security charge and from the passenger terminal facilities charge.

108    As regards security, the calculations submitted by the complainants are based on estimated costs of EUR 4 000 000. The letter of 26 January 2005 (p. 2) refers in that regard to staff costs (400 staff at EUR 900 per month) related to the services in question, and the letters of 28 June and 15 July 2004 refer to a security systems cost of DEM 6 281 757 or EUR 3 454 966. According to the letter of 26 January 2005 (p. 2), the security charge generates revenues of EUR 15 000 000.

109    As to airport terminal facilities, the costs calculation is based, in the letter of 26 January 2005 (pp. 2 and 3), on an estimate of the fixed costs of the facilities needed in order to provide the services in question (EUR 200 000 000), amortised over an investment period of 24 years (EUR 8 300 000) and increased to include estimated staff costs (EUR 16 000 000) and other unidentified costs (EUR 2 700 000) related to the services in question. According to the letter of 26 January 2005 (p. 2), the passenger terminal facilities charge generates revenues of EUR 67 000 000. By comparing the costs with the revenues generated by the charges, the complainants conclude that the charges are excessive, contrary to Article 82 EC. In their letter of 26 January 2005 (pp. 3 and 4), they claim that profits are in excess of 1000% for security and EUR 40 000 000 for providing passengers with terminal facilities.

110    As regards car parking, the complainants’ claim as to the excessive nature of the charges is based, in their letters of 28 June 2004, 15 July 2004 and 26 January 2005, on an investment cost estimated at DEM 1 364 010 or EUR 753 206, and they conclude that the profits from those services are in excess of 1000%.

111    It must be noted that the Commission commented in the contested decision on the information brought to its attention by the letters referred to in paragraphs 107 to 110 above.

112    Thus, as regards security, the Commission states in paragraph 73 of the contested decision that the applicants’ comparisons between revenues and expenses are based on erroneous and incomplete information. Furthermore, the applicants took only passenger and hand luggage screening services into consideration, whereas security activities encompass also guarding, access and patrol security services, general security supervision services, all security equipment, alarm systems, etc. Likewise, as regards passenger terminal facilities and car parking services, the Commission draws attention, in paragraphs 83 and 135 of the contested decision respectively, to the lack of reference to the complainants’ sources and to the inaccurate and unfounded nature of the calculations made.

113    However, save for the fact that they take the view that the Commission was aware, during the administrative procedure, of the source of the information used to calculate the cost of the security systems, airport facilities and parking (namely the Greek authorities’ Cohesion Fund application for assistance), the applicants do not deny the findings of the Commission set out in the previous paragraph.

114    In any event, the inaccurate and unfounded nature of the applicants’ calculations is apparent from the very documents to which the applicants made reference during these proceedings.

115    Firstly, as regards the costs of the security systems, appendix 7 to the Greek authorities’ Cohesion Fund application for assistance refers to a sum of DEM 6 281 757 for ‘passenger security systems’ in the Main Terminal Building East. The applicants do not, however, refer to the figure of DEM 1 073 633 provided for ‘passenger security systems’ in Satellite I. Their calculations on the basis of an installation cost of DEM 6 281 757 are therefore manifestly inaccurate. Furthermore, the applicants have not denied that the costs of providing security services cannot be reduced to the cost of installing a ‘passenger security system’.

116    Secondly, as regards the passenger terminal facilities charge, the applicants refer to the figure of EUR 200 000 000 for the purposes of calculating AIA’s fixed costs, having already relied on that figure during the administrative procedure (paragraph 83 of the contested decision). According to the applicants, that figure corresponds to the total cost of works related to the airport facilities referred to in appendix 7 to the Greek authorities’ application for assistance from the Cohesion Fund.

117    However, it must be noted that the appendix to which the applicants refer mentions a total cost of DEM 2 440 536 638 or approximately EUR 1 250 000 000 for the works related to Athens airport. Furthermore, it must be pointed out that Commission Decision C(96) 1356 of 23 May 1996 granting Cohesion Fund assistance for the construction of Athens airport provides for total Community assistance of EUR 250 000 000, which necessarily implies that the figure of EUR 200 000 000 put forward by the complainants during the administrative procedure cannot correspond to the total cost of construction of the airport.

118    Thirdly, as regards the car parking charge, appendix 7 to the Cohesion Fund application for assistance for the construction of the new Athens airport, to which the applicants refer, mentions an estimated investment cost of DEM 1 364 010 or approximately EUR 753 206 in respect of parking. However, the same appendix makes two further references to ‘parking’, at a cost of DEM 663 073 and DEM 256 733 respectively. The applicants’ calculations are therefore incomplete in any event.

119    In addition, it must be pointed out that the Commission found, in paragraphs 137 to 139 of the contested decision, that it was not in the Community interest to investigate further the alleged infringement in relation to the car parking charge, taking the view, in essence, that that car parking market is unlikely to constitute a relevant market, that the alleged infringement would not have an effect on intra-Community trade and would not appreciably affect competition in the common market, and that its centre of gravity was in Greece, with the result that the complainants could lodge a complaint with the Greek authorities or bring an action before the Greek courts. However, aside from the definition of the market concerned, the applicants have not disputed in the application the other factors in the light of which the Commission found that it was not in the Community interest to investigate further the alleged infringement in relation to the car parking charge.

120    Finally, the non-confidential version of AIA’s replies of 27 August 2004 to the Commission’s request for information, which was produced to the Court of First Instance following a measure of organisation of procedure, confirms that the applicants’ calculations in relation to the allegedly excessive nature of AIA’s charges are incorrect. It is apparent from that reply (p. 4) that, as regards its air activities, AIA’s charges, taken as a whole, do not even cover its costs although, according to Article 14 of the agreement, which was ratified by Article 1 of Law No 2338/1995, AIA is entitled to set its charges not only to reflect its costs but also to take into account a minimum profit margin of 15%.

121    In the second place, as regards the applicants’ argument concerning the failure to take account of the letters of 28 June, 15 July, 22 and 26 October 2004, it must be pointed out that the information in those letters was repeated in the letter of 26 January 2005, the contents of which were carefully considered by the Commission, as paragraph 73 of the contested decision shows (see paragraphs 107 to 111 above).

122    In the third place, the applicants’ arguments concerning the irregularities in the consideration of complaint No 2004/4134, SG(2004) A/1724 of 27 November 2003, and the failure to take into account the evidence submitted in connection with that complaint cannot be accepted either.

123    The Commission takes certain aspects of complaint No 2004/4134, SG(2004) A/1724 of 27 November 2003 into consideration in paragraph 73 and footnote 25 of the contested decision. They are, however, those aspects of the complaint that were reproduced verbatim in the complainants’ letter of 26 January 2005 in relation to the administrative procedure concerning the complaint of 5 July 2002.

124    Since the contested decision relates only to the complaint of 5 July 2002 and not to complaint No 2004/4134, SG(2004) A/1724 of 27 November 2003, the Commission had to take into account in that decision only the evidence relied on in relation to the first complaint. Therefore, any irregularities in the handling of complaint No 2004/4134, SG(2004) A/1724 of 27 November 2003 cannot affect the lawfulness of the contested decision.

125    It follows from all the foregoing that the applicants have not established that the Commission failed to consider carefully the evidence brought to its attention or that it made a manifest error of assessment in considering that that evidence did not constitute sound evidence of the existence of an infringement of Article 82 EC and therefore that there was no Community interest in pursuing its investigation.

–       The failure to verify the information supplied by AIA

126    It must be observed first of all that, as paragraph 22 of the contested decision shows, the Commission considered it necessary, in spite of the unconvincing evidence adduced by the complainants, to carry out an initial investigation of AIA’s costs and revenues by sending a request for information, inter alia, to AIA.

127    The information relating to costs and revenues provided in its reply of 27 August 2004 to that request for information is, according to the Commission, confidential with respect to the complainants (footnote 23 of the contested decision). In the contested decision, particularly in paragraphs 74, 76, 90, 91 and 135, the Commission merely draws conclusions from AIA’s reply without mentioning the figures on which those conclusions are based.

128    Accordingly, the Commission maintains, in paragraph 74 and at the end of paragraph 76 of the contested decision, that it follows from AIA’s reply to the request for information that security activities do not generate a surplus and that there is consequently no evidence of excessive pricing that would justify further investigation. The Commission maintains also, in paragraph 90 of the contested decision, that it follows from that reply that the charges levied by AIA do not generate a surplus and in fact do not even cover the cost of AIA’s air activities. As to the car parking charge, the Commission states in paragraph 135 of the contested decision that the figure of EUR 700 000 mentioned by the complainants in respect of parking-related costs refers only to fixed costs – whereas a comparison of the costs and revenues should also include other costs – and is not, in any event, supported by the information given by AIA in its reply to the request for information.

129    Contrary to the applicants’ claim, the fact that the Commission did not verify the reliability of the information supplied by AIA cannot affect the lawfulness of the contested decision.

130    It must be borne in mind in that regard that the Commission is not required to establish the existence or non-existence of an infringement (GEMA v Commission, cited in paragraph 91 above, paragraphs 17 and 18; Ufex and Others v Commission, cited in paragraph 91 above, paragraph 87; Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 75; and Riviera Auto Service and Others v Commission, cited in paragraph 91 above, paragraph 48).

131    In the present case, the Commission concluded that there was insufficient likelihood of an infringement for it to be in the Community interest to investigate the practices criticised in the complaint. In that regard, the Commission acted on the basis of, first, its finding that the information on AIA’s costs and revenues submitted by the complainants did not support the conclusion that an infringement had occurred and, second, two factors which indeed suggest that no infringement occurred, namely (1) the comparison of AIA’s charges and those imposed at other airports, and (2) the comparison of AIA’s costs and revenues resulting from AIA’s reply of 27 August 2004 to the Commission’s request for information.

132    It must be noted that the non-confidential version of AIA’s reply of 27 August 2004 (p. 4) shows that, as regards its air activities, AIA’s charges, taken as a whole, do not even cover its costs although, according to Article 14 of the agreement, which was ratified by Article 1 of Law No 2338/1995, AIA is entitled to set its charges not only to reflect its costs but also to take into account a minimum profit margin of 15%.

133    Furthermore, the applicants have not denied that the verification of information in AIA’s reply which would be needed in order to establish the existence of an infringement would involve disproportionate efforts on the Commission’s part (paragraphs 78, 79, 92 and 140 of the contested decision). The complexity of the analysis which would have to be undertaken in order to establish an infringement in the present case relates in particular to the determination of the exact costs which would have to be taken into account in order to assess whether or not each charge imposed by AIA is excessive. It is the complexity of such an analysis for the purposes of determining whether there was an infringement and the small likelihood of the existence of such an infringement which caused the Commission not to verify the reliability of the confidential information on AIA’s costs and revenues and to reject the complaint for lack of Community interest (see paragraphs 76, 78, 90 to 92, 135 and 140 of the contested decision).

134    Accordingly, since the assessment of the Community interest does not depend on the material accuracy of the information supplied by AIA, the failure to verify that information cannot affect the lawfulness of the contested decision. That last complaint cannot, therefore, be upheld either.

135    It follows from all the foregoing that the applicants have not demonstrated that the Commission failed to consider sufficiently all the matters of fact and of law which were brought to its attention or that it made a manifest error of assessment in finding that there was no Community interest in pursuing the investigation of the practices criticised in the complaint.

136    It follows that the first plea in law must be rejected in its entirety.

 Second plea in law, alleging an infringement of Article 82 EC in that, first, the Commission considered that the security checks did not constitute an economic activity and, second, the car parking services did not constitute a relevant market for the purposes of that article

 Arguments of the parties

137    First, the applicants submit that the Commission infringed Article 82 EC by concluding, in paragraphs 48 and 49 of the contested decision, that AIA was not exercising an economic activity for the purposes of that article when carrying out security checks on passengers departing from Athens airport. In that regard, the applicants note that, as they observed in their letters of 8 April and 5 May 2004, AIA is a private company which charges passengers for security services. They point out, moreover, that the security services are provided by private companies.

138    The applicants submit that paragraph 17.2 of the Greek Ministerial Decision of 29 December 2000 concerning the national regulation of civil aviation security provides that responsibility for the security systems in Greek airports lies with the national civil aviation authority. That decision does not preclude passenger security checks from being carried out by private companies, but this is only an option, as the rule in all Greek airports is that the national police are responsible for carrying out passenger security checks free of charge. The fact that passenger checks are carried out by private security companies in Athens airport is not, therefore, the consequence of a public service obligation imposed on AIA by the Greek State, but reflects a choice made by AIA itself. The applicants further submit that paragraph 13.6.3 of the Ministerial Decision of 29 December 2000 stipulates that compulsory body searches of passengers are the prerogative of the Greek police and that passengers have the right to refuse such searches by private security personnel.

139    The applicants emphasise that the Commission itself acknowledges in paragraph 55 of the contested decision that the security companies are selected by and on behalf of AIA and not by the police. The main selection criterion is the price asked by the candidate security company. They note also that AIA is free to charge whatever it deems appropriate for security services, thereby realising profit margins which are subject to no constraint whatsoever.

140    Second, the applicants claim that the Commission was in breach of Article 82 EC in taking the view in paragraphs 122 to 132 of the contested decision that the car parking services did not constitute a relevant market for the purpose of that article. They argue that, for passengers using Athens airport and travelling to the airport by their own car, alternative means of transport, such as travel by taxi or public transport, cannot be regarded as a substitute. The airport car park is used not only by those making a journey by air but also for a variety of other reasons, such as collecting passengers. In addition, the Commission, which claims that passengers would use other means of transport ‘if the prices of car parking at the airport were raised significantly above competitive levels’, has not explained to what level car parking charges would have to be raised to achieve that effect. Furthermore, the metro is not a quicker way for most Athenians to reach the airport, as most do not live in the city centre.

141    The applicants submit that the needs of passengers who use their private cars to reach Athens airport cannot be regarded as being similarly served if they are obliged to take a taxi or to use public transport while having to carry their luggage. There is, therefore, no interchangeability within the meaning of the Commission’s Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5).

142    Finally, the Commission’s argument that passengers residing outside Greece will never use the car parking facilities at Athens airport is unfounded, as a number of people who work in Brussels or London return to Athens for weekends and use the car parking facilities at Athens airport.

143    The Commission contends that this plea in law should be rejected.

 Findings of the Court

144    First, as regards the security charge, it must be borne in mind that, in the contested decision, the Commission rejected the complaint after concluding that Article 82 EC did not apply to security checks, and that, ‘in any event … it [was] not in the Community interest to open an in-depth investigation’.

145    It must be noted that, as far as the security charge is concerned, the applicants’ arguments concerning the assessment of the Community interest have all been rejected in relation to the first plea in law (paragraphs 100 to 135 above). In those circumstances, the arguments relied on in the present plea concerning the allegedly economic nature of the security activities must be regarded as being immaterial (see, to that effect, Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 146, and the case-law cited, and also Piau v Commission, cited in paragraph 66 above, paragraph 119). They relate to a reason that was included in the contested decision for the sake of completeness.

146    Second, as regards the car parking charge, the Commission rejected the complaint of 5 July 2002 in so far as it relates to the allegedly excessive nature of that charge on the ground that ‘it [was] not in the Community interest to open an in-depth investigation’ (paragraph 141 of the contested decision). In its assessment of the Community interest in investigating the complaint, the Commission took into account the likelihood that the airport car parking market does not constitute a separate market for the purposes of Article 82 EC (paragraph 119 above).

147    However, it must be noted in relation to the present plea that the applicants do not challenge the assessment of the Community interest made in the contested decision, but only complain that the Commission infringed Article 82 EC in so far as it found that car parking services did not constitute a relevant market for the purposes of that article. That being said, it must be noted that the Commission explicitly stated in the contested decision (paragraph 130) that it did not propose to reach a conclusion on that point.

148    In any event, it is not apparent that the Commission made a manifest error of assessment in concluding that, in view of the alternative means of transport to Athens airport (metro, train, bus and taxi), ‘it appears likely that a significant number of passengers who wished to travel to the airport using their own car would switch to other means of transport to and from the airport if the prices of car parking at the airport were raised significantly above competitive levels’ (paragraph 127 of the contested decision). Moreover, the applicants do not dispute the Commission’s assertions in the contested decision (paragraph 139) that the centre of gravity of the alleged abuse is in Greece and that an action against that alleged abuse could be brought before the Greek courts. However, it is apparent from the case-law that such points are in themselves sufficient reason for a complaint to be rejected for lack of Community interest (see, to that effect, Case T‑5/93 Tremblay and Others v Commission [1995] ECR II‑185, paragraph 74).

149    Furthermore, the Court cannot accept the applicants’ argument at the hearing that the Commission was not entitled to refer in the contested decision to the metro as an alternative means of transport because the complaint was lodged in July 2002 and the metro did not become operational until 2004. A decision rejecting a complaint must be based on the Commission’s consideration of all relevant matters of law and of fact which exist at the time the decision is adopted (see, to that effect, Ufex and Others v Commission, cited in paragraph 91 above, paragraphs 92 to 96, and Case T‑206/99 Métropole télévision v Commission [2001] ECR II‑1057, paragraphs 64 and 65).

150    The second plea in law cannot therefore be accepted either.

 Third plea in law, alleging an error of law concerning the application to passengers of a higher terminal facility charge for those on intra-Community and international flights than for those on domestic flights, and the application to passengers on scheduled flights of a terminal facility charge and a security charge which are not applied to those travelling on charter flights

 Arguments of the parties

151    The applicants recall that they informed the Commission by letter of 18 February 2003 that, on domestic flights, passengers pay a terminal facility charge of EUR 7.79, whereas on intra-Community and international flights they pay EUR 10.30 (raised to EUR 11.20 on 1 November 2004). Further, the security charge and the passenger terminal facility charge are levied only in respect of passengers on scheduled flights, not of passengers on charter flights.

152    It follows from the judgment of the Court of Justice in Case C‑92/01 Stylianakis [2003] ECR I‑1291 that such practices are in breach of Community law.

153    The Commission contends that this plea should be rejected.

 Findings of the Court

154    It must be noted, first of all, that, during the administrative procedure, the complainants challenged the discriminatory nature of the Spatosimo. Thus, by letter of 4 October 2002, Mr Koeune explicitly drew attention to the fact that the Spatosimo amounted to EUR 20 for international flights and EUR 10 for domestic flights.

155    By letter of 28 February 2003 to Mrs Scippacercola, the DG for Energy and Transport pointed out that, following the amendment of Law No 2065/1992 by Law No 2892/2001, the Spatosimo was no longer discriminatory since it had been set at EUR 12 for all destinations within the European Union.

156    By letter of 19 March 2003 to Mrs Scippacercola, the DG for Competition announced, after observing that the Spatosimo had been fixed at EUR 12 for all destinations within the EEA, that it intended to take no further action on the complaint in so far as it related in particular to the excessive nature of that tax, since it did not concern the conduct of an undertaking for the purposes of Articles 81 EC and 82 EC. The complaints relating to the Spatosimo were thus covered by a decision made by the Commission on 22 May 2003 to take no further action. By letter of 26 May 2003, the Commission informed Mrs Scippacercola of that decision, which is not being challenged in an action before the Court of First Instance.

157    Next, it must be noted that, so far as the charges considered in the contested decision are concerned, the complainants did not at any time during the administrative procedure complain that they were discriminatory, only that they were excessive.

158    While Mrs Scippacercola’s letter of 18 February 2003 – the only letter referred to by the applicants in relation to this plea – refers separately to the levels of charges for domestic, intra-Community and international departures, it complains only that they are excessive, particularly by comparison with the previous situation and by comparison with charges at other airports. It must be observed in that respect that Mrs Scippacercola’s letter of 26 February 2003, which contains a reference to the letter of 18 February 2003, describes the subject-matter of the complaint of 5 July 2002 as ‘[c]harges excessives pour les usagers’ (excessive charges for passengers).

159    Since the complaints expressed in the third plea were not expressed during the administrative procedure prior to the adoption of the contested decision, the Commission cannot be criticised for failing to examine those complaints in its decision (see, to that effect, Case T‑319/99 FENIN v Commission [2003] ECR II‑357, paragraph 43).

160    In any event, where a complainant considers that the Commission, in its decision to take no action on a complaint on a competition matter, has failed to express a view on one of the aspects of that complaint, such a failure cannot be held unlawful in the context of a review of legality under Article 230 EC. In fact, in those circumstances, the onus is on the complainant to request the Commission to express a view and, if necessary, to bring an action under the second paragraph of Article 232 EC for a declaration by the Community judicature that the Commission has failed to act (Case T‑52/00 Coe Clerici Logistics v Commission [2003] ECR II‑2123, paragraphs 71 and 80).

161    It follows from the foregoing that the third plea also is unfounded.

 Fourth plea in law, alleging an infringement of Article 253 EC and a departure from established rights and procedures

 Arguments of the parties

162    First, the applicants claim that the Commission incorrectly assessed the information supplied by AIA in relation to the security charge, the passenger terminal facilities charge and the car parking charge. Referring to Case T‑92/98 Interporc v Commission [1999] ECR II‑3521, paragraph 77, they submit that, in so doing, the Commission infringed Article 253 EC.

163    In the present case, the Commission simply informed the applicants in a summary way that it found that AIA did not engage in excessive pricing, without allowing the applicants to know the figures used in its analysis or to identify the calculations behind the refusal to open an in-depth investigation.

164    Further, the applicants claim that the Commission failed in its duty of care and infringed the principle of sound administration. In accordance with settled case-law, it is for the Commission, when supplied with sufficient prima facie evidence of the existence of an abuse of a dominant position as a result of excessive pricing, to establish beyond doubt that the practices complained of are either non-existent or pure conjecture or speculation. However, there is no suggestion in the contested decision that the Commission examined the prima facie evidence put forward by the applicants during the administrative procedure. Further, the contested decision does not include any information about AIA’s costs and revenues as supplied in AIA’s response to the Commission’s request for information.

165    Second, the applicants claim in the reply that the fundamental reason which the Commission put forward in the contested decision to justify the rejection of the complaint is the lack of Community interest. However, the Commission did not provide adequate reasoning in the contested decision as to precisely what that Community interest comprises.

166    The applicants accept that the Commission has a certain discretion in fixing its priorities according to the degree of Community interest, and accordingly that it may reject a complaint when it considers that there is insufficient Community interest to justify the initiation of an in-depth investigation (Case T‑24/90 Automec v Commission, cited in paragraph 91 above). However, although the lodgment of a complaint does not oblige the Commission to initiate an investigation, that institution is nevertheless required to examine with all due care the factual and legal aspects of the complaint in order to determine whether they disclose conduct that may distort competition in the common market (Schmidt v Commission, cited in paragraph 66 above, and Riviera Auto Service and Others v Commission, cited in paragraph 91 above).

167    It follows, according to the applicants, that the Commission cannot refer to a lack of Community interest in the abstract if it is rejecting the complaint on that ground (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 85). It is required to disclose in a clear and unequivocal fashion, and not in a summary way, the matters of fact and of law which led it to conclude that there was no Community interest, so as to enable the Community judicature to exercise its powers of review of the pleas in law invoked and the applicant to defend its rights (Case T‑575/93 Koelman v Commission [1996] ECR II‑1, paragraph 83, and Asia Motor France and Others v Commission, cited in paragraph 97 above, paragraph 103). Nor can the Commission simply invoke lack of priority as an excuse for not initiating an investigation. It is required to assess how serious the alleged infringements are and how persistent their effects (Commission Notice on the handling by the Commission of complaints lodged under Articles 81 EC and 82 EC (OJ 2004 C 101, p. 65, point 44)).

168    In the present case, the Commission did not examine the complaint with due care and failed to evaluate correctly the factual and legal particulars of the case before deciding to reject it for lack of Community interest. Consequently, contrary to Article 253 EC, the contested decision failed to set out properly and clearly the considerations of fact and of law on the basis of which the complaint was rejected, with the result that the applicants are not in a position to assert their rights before the Court and the Court is not able to carry out its review of legality.

169    Furthermore, the Commission did not ensure that the Treaty is properly applied, particularly the competition rules. In order to fulfil its functions conferred by Article 85 EC, and in view of the objectives of Article 3(g) EC, the Commission should have investigated the matter and established whether an infringement of Article 82 EC had in fact taken place.

170    The applicants maintain in that regard that case-law applies three strict criteria to the Commission’s right to reject a complaint for lack of Community interest, namely the significance of the alleged infringement for the functioning of the common market, the probability of being able to establish the existence of the infringement, and the scope of the investigation required in order for the Commission to be able to fulfil under the best possible conditions the task of ensuring that Articles 81 EC and 82 EC are complied with (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 86, and Européenne automobile v Commission, cited in paragraph 93 above, paragraph 42). Given AIA’s dominant position and the significance of the potential infringement of Article 82 EC, they take the view that the Commission was not entitled to reject the complaint of 5 July 2002 for lack of Community interest, since the difficulty and the need for more resources for further investigations are not an excuse that can relieve the Commission of its obligations and responsibilities under the Treaty and certainly cannot be regarded as constituting adequate grounds for rejecting the complaint for lack of Community interest.

171    Finally, the Commission’s duty of care and diligence is more demanding in cases where it decides not to reject the complaint at an early stage for lack of Community interest. Although the Commission is not obliged to take up a complaint, it decided in the present case to take it up initially by undertaking a preliminary evaluation of the market power of the undertaking concerned and by accepting indirectly that there might be an infringement that could affect trade between Member States. It went on to reject the complaint because the likelihood of establishing an infringement was too small in the light of the findings of its initial limited investigation. According to the applicants, the Commission should have properly weighed up the probability of being able to establish the existence of the infringement through a full investigation against the significance of such an infringement for the functioning of the common market. However the Commission failed not only to carry out that balancing exercise, but also, as a result, to state clearly its conclusions on that balancing exercise. Thus, the applicants are unable to understand clearly on what basis the Commission considered that the infringement was not significant for the functioning of the common market.

172    The Commission contends that this plea should be rejected.

 Findings of the Court

173    First, it must be borne in mind that the contested decision is essentially based on the lack of Community interest in pursuing an investigation of the practices criticised in the complaint. That is the only ground on which the complaint of 5 July 2002 was rejected so far as the allegedly excessive passenger terminal utilities and airport car parking charges are concerned. As regards the alleged infringement related to the security charge, the Commission additionally took the view that the practices in question did not fall within the scope of Article 82 EC.

174    Next, it must be borne in mind that the Commission is under an obligation to state reasons if, as in this case, it declines to continue with the examination of a complaint for lack of Community interest. Since the reasons stated must be sufficiently precise and detailed to enable the Court of First Instance effectively to review the Commission’s use of its discretion to define priorities, the Commission must set out the facts justifying the decision and the legal considerations on the basis of which it was adopted (Ufex and Others v Commission, cited in paragraph 91 above, paragraphs 90 and 91; Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 85; and Européenne automobile v Commission, cited in paragraph 93 above, paragraph 29).

175    In the present case, it is apparent from the contested decision that the Commission analysed the evidence adduced by the applicants during the administrative procedure, that it compared the charges to those imposed at other established airports in the European Community, and that it sent a request for information to, inter alia, AIA.

176    Its conclusion that there was no Community interest in pursuing the investigation of the practices complained of was based on the finding that the likelihood of an infringement was small in the light of the evidence in the complaint and the results of an initial investigation, that the efforts required to establish any infringement of Article 82 EC would be disproportionate, and that the significance of the infringement complained of was low as regards the functioning of the common market (paragraphs 43, 78, 79, 92, 136 to 138 and 140 of the contested decision). As regards the alleged infringement related to the car parking charge, the Commission refers further to the fact that the centre of gravity of the infringement lies in Greece, with the result that the complainants could bring an action before the Greek courts or lodge a complaint with the national competition authority (paragraph 139 of the contested decision).

177    As regards the alleged infringement related to the security charge, the Commission explains in paragraphs 47 to 57 of the contested decision why it considers further that the activities in question do not fall within the scope of Article 82 EC.

178    Moreover, it follows from the analysis of the first plea in law that more precise figures for any calculations carried out by the Commission during the administrative procedure or for AIA’s costs and revenues were not necessary in order for the applicants to be aware of the reasons for the contested decision or to enable the Court of First Instance to undertake its review.

179    Accordingly, it must be held that the contested decision rejecting the complaint is sufficiently reasoned.

180    Finally, the applicants’ argument that the Commission is obliged, in a decision rejecting a complaint, to establish beyond any doubt that the practices complained of do not infringe the competition rules is an argument that concerns the lawfulness of the substance of the contested decision and cannot be accepted either. It has consistently been held that the Commission is not obliged to take a final decision as regards the existence or otherwise of an infringement of the Treaty rules on competition (GEMA v Commission, cited in paragraph 91 above, paragraphs 17 and 18; Ufex and Others v Commission, cited in paragraph 91 above, paragraph 87; Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 75; and RivieraAuto ServiceandOthers v Commission, cited in paragraph 91 above, paragraph 48).

181    Second, the applicants make various submissions in the reply concerning the allegedly inadequate reasoning for a lack of Community interest in pursuing the investigation of the practices criticised in the complaint.

182    However, as is apparent from paragraphs 175 and 176 above and from the substantive examination of the first plea in law, it must be held that sufficient reasons are given in the contested decision on that point. In fact, the contested decision sets out clearly the matters of law or of fact which, according to the Commission, justified rejecting the complaint for lack of Community interest.

183    Furthermore, it must be noted that a number of arguments which the applicants raised in the reply in relation to the first plea in law concern errors of law or of assessment by the Commission in rejecting the complaint for lack of Community interest. This applies to the applicants’ argument that, by overlooking the significance of a possible infringement as regards the functioning of the common market, the Commission did not correctly weigh up the three criteria set out in Case T‑24/90 Automec v Commission, cited in paragraph 91 above (paragraph 86), for the rejection of a complaint for lack of Community interest. The same applies to the arguments that the Commission should have undertaken an in-depth investigation because AIA has a dominant position and the alleged abuse could affect trade between the Member States, or because it had decided not to reject the complaint at an earlier stage.

184    The applicants also maintain in the reply that the Commission did not examine with all due care the factual and legal aspects of the complaint and that it should have investigated the matter and established whether Article 82 EC had indeed been infringed.

185    As to whether the arguments referred to in paragraphs 183 and 184 above are included in the application, it must be observed that, while the applicants did not set out a plea in law relating specifically to the Commission’s alleged manifest error of assessment in considering that the practices criticised in the complaint did not represent a sufficient Community interest to justify an in-depth investigation, they nevertheless complained within the first plea in law of the fact that the Commission had not paid due attention to the content of the complaint before concluding that it was not in the Community interest to open an in-depth investigation. However, since the Commission must consider attentively the matters of fact and of law which a complainant brings to its attention in order to assess the Community interest in pursuing the investigation of a case (Schmidt v Commission, cited in paragraph 66 above, paragraph 19, and Ufex and Others v Commission, cited in paragraph 91 above, paragraph 86), the arguments put forward in relation to the first plea in law relate implicitly but necessarily to the Commission’s assessment of the Community interest in pursuing the investigation of the practices in question. It follows that the argument mentioned in paragraph 184 above is incorporated in the first plea raised in the application and that it has already been addressed in the Court’s assessment of that plea.

186    By contrast, the arguments mentioned in paragraph 183 above do not concern the assessment of the matters of fact and of law which the complainants brought to the Commission’s attention. They are, therefore, new submissions which are not included in the first plea in the application. Such submissions must be declared inadmissible under Article 48(2) of the Rules of Procedure (Case T‑231/99 Joynson v Commission [2002] ECR II‑2085, paragraph 156, and Case T‑274/02 Ritek and Prodisc Technology v Council [2006] ECR II‑4305, paragraph 75).

187    For the sake of completeness, as regards the criteria set out in Case T‑24/90 Automec v Commission, cited in paragraph 91 above (paragraph 86), it must be borne in mind that, in order to reject a complaint for lack of Community interest, the Commission must weigh up the significance of the alleged infringement for the functioning of the common market, the probability of its being able to establish the existence of the infringement and the extent of the investigative measures required, so that it may perform, under the best possible conditions, its task of supervising compliance with Articles 81 EC and 82 EC (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 86; Riviera AutoService and Others v Commission, cited in paragraph 91 above, paragraph 46; and Européenne automobile v Commission, cited in paragraph 93 above, paragraph 42).

188    It must be held that, in the present case, the Commission gave priority to investigating two of the three criteria set out in the preceding paragraph, namely the probability of being able to establish the existence of an infringement and the extent of the investigative measures required. An in-depth investigation of the significance of the alleged infringement for the functioning of the common market was carried out by the Commission only in relation to the car parking charge (paragraphs 138 and 139 of the contested decision).

189    Nevertheless, the Court of Justice has also held that, since the assessment of the Community interest raised by a complaint depends on the circumstances of each case, the number of criteria to which the Commission may refer for its assessment should not be limited, nor conversely should it be required to have recourse exclusively to certain criteria (Ufex and Others v Commission, cited in paragraph 91 above, paragraphs 79 and 80, and Case C‑450/98 P IECC v Commission [2001] ECR I‑3947, paragraph 58).

190    It follows from this that the Commission did not err in law in giving priority to the investigation of two of the three criteria set out in the case-law referred to in paragraph 187 above (Case C‑450/98 P IECC v Commission, cited in paragraph 189 above, paragraph 59).

191    As regards the other arguments advanced in the reply, it must be borne in mind that the Commission is not obliged to carry out an investigation when a complaint is lodged (Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 76). Furthermore, when carrying out an initial investigation, it is not precluded thereby from rejecting the complaint for lack of Community interest. The existence of the Commission’s discretion in that regard does not depend on the stage to which the investigation of a case has advanced (Case C‑449/98 P IECC v Commission, cited in paragraph 92 above, paragraph 37).

192    Finally, the argument that the Commission is required to open an in-depth investigation where the undertaking to which the complaint relates holds a dominant position is unsupported by case-law and, on the contrary, is at odds with the Commission’s discretion in that area which has been recognised by the Community judicature (see, to that effect, Case C‑449/98 P IECC v Commission, cited in paragraph 92 above, paragraph 37, and Case T‑24/90 Automec v Commission, cited in paragraph 91 above, paragraph 76).

193    It follows from all the foregoing that this last plea in law must also be rejected.

 The measures of organisation of procedure applied for

194    It must be noted that, as a result of the measures of organisation of procedure taken by the Court of First Instance, the Commission lodged a non-confidential version of AIA’s reply of 27 August 2004 to the Commission’s request for information.

195    However, the applicants are critical of the fact that neither the contested decision nor the non-confidential version of AIA’s reply of 27 August 2004 contains specific details of AIA’s costs and revenues. They request that the figures relating to security service costs and revenues supplied by AIA for 2001 to 2004 be submitted to the Court of First Instance, so that these can be verified and assessed in the light of their arguments to show that AIA is making excessive profits. They also seek the production of all documents proving the true cost of construction of the airport (and the names of the constructors and of the suppliers concerned), and an explanation of the economic reasons justifying the increase in the security charge in 2002.

196    In that regard, it must be held that it follows from the foregoing considerations in relation to the various pleas in law relied on by the applicants that the Court of First Instance has been able to rule on the present action in the light of the documents submitted by the parties during the written procedure and the documents supplied by the Commission in the context of the measure of organisation of procedure (Case T‑281/01 Huygens v Commission [2004] ECR‑SC I‑A‑203 and II‑903, paragraph 145). As regards, in particular, the lawfulness of the assessment of the Community interest made in the contested decision, it should be borne in mind, first, that the non-confidential version of AIA’s reply (p. 4) confirms that, as far as its air activities are concerned, AIA’s charges do not even cover its costs and, second, that the lawfulness of the Commission’s assessment does not depend on the material accuracy of the information supplied by AIA. It is, in particular, the complexity of the analysis which would have had to be undertaken to establish an infringement of Article 82 EC and the small probability of the existence of such an infringement which caused the Commission not to verify the reliability of the confidential information on AIA’s costs and revenues and to reject the complaint for lack of Community interest (see paragraphs 76, 78, 90 to 92, 135 and 140 of the contested decision).

197    Accordingly, the applicants’ applications must be dismissed in so far as they relate to documents other than the non-confidential version of AIA’s reply to the Commission’s request for information.

198    In the light of all those considerations, the action must be dismissed.

 Costs

199    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Isabella Scippacercola and Ioannis Terezakis to pay the costs.

Vilaras Martins Ribeiro Jürimäe

Delivered in open court in Luxembourg on 16 January 2008.

E. Coulon       M. Vilaras

Table of contents

Legal framework

Community legal framework applicable to complaints relating to infringements of the competition rules of the EC Treaty

Legal framework applicable until 30 April 2004

Legal framework in force from 1 May 2004

Greek legal framework

Facts and administrative procedure

The contested decision

Procedure and forms of order sought by the parties

Admissibility

Arguments of the parties

Findings of the Court

Substance

Preliminary observations

First plea in law, alleging an error of law and a manifest error of assessment in that the Commission did not carry out a proper comparison of the costs and revenues related to the provision of security services, the provision of airport terminal facilities to passengers and the provision of car parking services, by failing to verify the reliability of the information supplied by AIA and by failing to examine one by one the economic and financial data submitted by the applicants

Arguments of the parties

Findings of the Court

– Preliminary observations

– The comparison between the charges levied at Athens airport and those imposed by other airports

– The alleged failure to take sufficient account of the evidence submitted by the complainants during the administrative procedure

– The failure to verify the information supplied by AIA

Second plea in law, alleging an infringement of Article 82 EC in that, first, the Commission considered that the security checks did not constitute an economic activity and, second, the car parking services did not constitute a relevant market for the purposes of that article

Arguments of the parties

Findings of the Court

Third plea in law, alleging an error of law concerning the application to passengers of a higher terminal facility charge for those on intra-Community and international flights than for those on domestic flights, and the application to passengers on scheduled flights of a terminal facility charge and a security charge which are not applied to those travelling on charter flights

Arguments of the parties

Findings of the Court

Fourth plea in law, alleging an infringement of Article 253 EC and a departure from established rights and procedures

Arguments of the parties

Findings of the Court

The measures of organisation of procedure applied for

Costs

* Language of the case: English.