First, the managing body may, it seems to me, have an interest in a particular air carrier being given advantageous treatment in the allocation of slots because it holds shares in that carrier.

Secondly, the managing body may have an interest in the air carriers which pay it the highest airport charges being given advantageous treatment in the allocation of slots. Airport charges, which the Portuguese Republic refers to without stating their purpose, are, according to the definition given by Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges,  11 OJ 2009 L 70, p. 11. charges paid by air carriers to the managing body for the use of services which only the managing body can provide, more specifically the use of airport facilities and the provision of services related, amongst other things, to landing and take-off of aircrafts.  12 See Article 2(4), of Directive 2009/12. While Directive 2009/12 prohibits the managing body from imposing discriminatory charges, it permits it to vary the quality and scope of particular services, and to differentiate the level of airport charges according to the quality and scope of such services.  13 See Article 10(1) of Directive 2009/12. The managing body may thus have an interest in the air carrier to which it provides the highest level of service, for example the provision of an entire terminal,  14 Article 10 of Directive 2009/12 mentions, among the services which may be varied in quality and scope by the managing body, the provision of terminals or parts of terminals. and from which it consequently receives the highest airport charges, receiving advantageous treatment in the allocation of slots.

In this regard, the Portuguese Republic’s argument that the interest of the managing body lies in the highest possible number of air carriers being allocated slots, because it would thus receive more by way of airport charges, does not seem to me to be convincing. This argument does not take account of the differentiation of services, and thus charges, described in the last paragraph.

Thirdly, the managing body may not content itself with managing the airport infrastructure, but may engage in other activities, for example on the downstream market for the supply of groundhandling services. Groundhandling services, which are to be distinguished from services paid for through the airport charges referred to in point 53 above,  15 See Article 1(4) of Directive 2009/12. include, according to the definition given by Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports,  16 OJ 1996 L 272, p. 36. checking passengers’ tickets and passports, loading and moving baggage, cleaning the aircraft, and refuelling.  17 See the Annex to Directive 96/67. Groundhandling services can be supplied to air carriers either by the managing body or by independent suppliers. An air carrier may also provide such services to itself. Consequently, if the managing body is active on the market for the supply of groundhandling services, it will have air carriers as clients or competitors.  18 In this regard, See Papy, R., L’aviation commerciale et le droit antitrust (Commercial aviation and antitrust law), Presses universitaires d’Aix-Marseille, 2013, paragraph 646: ‘since the liberalisation of groundhandling services was effected [by Directive 96/67], the number of managing airports involved in groundhandling services has not changed significantly (in the 15 Member States which existed in 1996). The market shares of suppliers of groundhandling services which are subsidiaries of managing bodies of airports have fallen but remain high. This situation creates potential conflicts of interest which are not all provided for by the directive, which may therefore necessitate the intervention of competition law in a complementary role. Restrictions on competition concern market access itself (unjustified refusal of access to suppliers), the quality of the conditions in which the supplier operates on the market (discriminatory allocation of operating premises and areas), and the cost of access to the market (discriminatory charges)’. See also the Report from the Commission of 24 January 2007 on the application of Council Directive 96/67/EC of 15 October 1996, COM(2006) 821 final, paragraph 16 ‘In a good number of Member States (... Portugal) the airport operator is active in the groundhandling market by providing handling services and is thus a direct competitor of suppliers of groundhandling services and air carriers which provide these services for third parties. ... at many larger airports where a sufficient number of service suppliers are interested in offering their services or where airport users also provide third party handling, the management bodies of airports are active in the market by providing handling services. At many such airports they have a strong position, which makes it difficult for a competitor or a new entrant to gain (additional) market share’. It may therefore have an interest in an air carrier which is an important client being given advantageous treatment in the allocation of slots or, conversely, in an air carrier which is a competing supplier of groundhandling services being given disadvantageous treatment in the allocation of slots.  19 On this subject, see the French Competition Council’s Decision No 98-D-34 of 2 June 1998 on competition in the market for groundhandling services at Orly airport and in the market for the premises and space necessary to carry out the activities of air carriers and made available to them by Aéroports de Paris at Orly airport (referred to by Papy, R. in L’aviation commerciale et le droit antitrust, op. cit.). In that decision, the Competition Council found that in refusing to allow the air carrier TAT to open new lines from Orly’s west terminal, but permitting them to be opened from the south terminal, the managing body of Orly airport, Aéroports de Paris, abused the dominant position (a monopoly) which it held in the market for airport infrastructure at Orly airport. The Council based that conclusion on the fact (amongst others) that, while TAT had provided its own groundhandling services at Orly’s west terminal, that was not the case at its south terminal, where TAT was constrained to use the groundhandling services provided by the managing body: ‘having regard ... to the fact that TAT, which, when it used the Orly West terminal, had provided groundhandling services for its own flights through its own staff, which had been specially trained, was constrained by [Aéroports de Paris] to use only [Aéroports de Paris] staff to operate the walkways, after being transferred to the Orly South terminal ... ; to the fact that in thus preventing TAT from using its own staff, and requiring it to use the groundhandling services that it offered at Orly South terminal, [Aéroports de Paris] discriminated against TAT’.

Fourthly, the managing body, where it is a public or state-owned undertaking, may be tempted to give advantageous treatment to the national air carrier in the allocation of slots.  20 Equally, the managing body may be tempted to give national carriers the benefit of discriminatory discounts on landing charges: see the judgment in Portugal v Commission, C‑163/99, EU:C:2001:189, paragraph 56: ‘the system of discounts appears to favour certain airlines, in this case de facto the national airlines’. In such a situation, the managing body is pursuing the interest of a third party, the national carrier, rather than its own interest, but is no less capable of influencing the coordinator.  21 In this regard, see Commission Decision 95/364/EC of 28 June 1995 relating to a proceeding pursuant to Article 90(3) of the Treaty (OJ 1995 L 216, p. 8), paragraph 17 of which states: ‘in the case at issue, ... the [Régie des Voies Aériennes, l’entité gestionnaire de l’aéroport de Bruxelles-Zaventen] is not attempting to obtain the loyalty of its customers or to attract new ones ..., but rather the State, acting through its intermediary, is giving preferential treatment to a specific undertaking, i.e. the national airline Sabena’.

We have seen above that the managing body may have an interest in the allocation of slots. Is it, as a managing body, to be presumed to have such an interest, or is the Commission required, in an action for failure to fulfil obligations, to prove that it does?

In my view, the answer to the question posed in the last paragraph should be that the managing body should, as such, be regarded as an interested party, without the need to examine whether, in the particular case, it has an interest in the allocation of slots.

It seems to me that it might be difficult to prove that a managing body had an interest in the allocation of slots. In order to establish that the managing body, in a particular case, had an interest in the allocation of slots, the Commission would have to show that it actually had a shareholding in an air carrier using the coordinated airport, that it let an entire terminal to an air carrier, or that it was active on the market for groundhandling services. Where the managing body holds the entirety of the shares in an air carrier, it seems obvious that it should be regarded as an interested party; but should it be so regarded if it only has, say, a one-fifth shareholding in that carrier? Where the managing body lets a terminal to an air carrier, it seems obvious that it should be regarded as an interested party; but should it be so regarded if it only lets certain parts of a terminal to that carrier, or if, while being active on the market for groundhandling services, it has only a modest market share? Demonstrating that a managing body has an interest in the allocation of slots would involve carrying out an analysis of the market for airport infrastructure and the downstream markets.

Furthermore, in a situation where the managing body does not itself derive any benefit from the allocation of slots, but limits itself to giving advantageous treatment to a national carrier with which it is not connected,  22 See point 56 of this Opinion. I find it difficult to see how the Commission could demonstrate that the managing body itself had an interest in the allocation of slots. Such a situation could therefore escape Article 4(2)(b) of Regulation No 95/93, as amended, when, as we have seen, it is capable of giving rise to abuse.

Accordingly, to require the Commission to demonstrate that the managing body is an interested party could lead to situations where the managing body’s interest in the allocation of slots is limited (for example, where it has a limited share in the market for groundhandling services) or simply lies in the future (where it plans to let an entire terminal to an air carrier) escaping scrutiny as to whether the coordinator is functionally separate. It seems to me that only systematic verification that the coordinator and the managing body are functionally separate can meet the objective of Regulation No 95/93, which is for slots to be allocated in accordance with ‘neutral, transparent and non-discriminatory rules’,  23 See recital 2 and Article 4(2)(c) of Regulation No 95/93, as amended. entailing that the ‘neutrality [of the coordinator] is unquestioned’.  24 See recital 5 of Regulation No 95/93, as amended. A fortiori, it is the only approach which can meet the objective of Regulation No 793/2004, which is to reinforce the coordinator’s independence by placing it in ‘a fully independent position’.  25 See recital 6 of Regulation No 793/2004.

In this regard, I would refer to the judgment in Commission v Germany  26 Judgment in Commission v Germany, C 518/07, EU:C:2010:125. which, although given in another field — that of processing of personal data — seems to me to be relevant. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data  27 OJ 1995 L 281, p.31. provides, in Article 28(1), for the Member States to put public authorities in place with responsibility for monitoring the application, within their territories, of the provisions transposing the directive, and lays down that those authorities are to ‘act with complete independence in exercising the functions entrusted to them’. In Commission v Germany, the Court ruled on German legislation which subjected the authority to the scrutiny of the State, or more specifically the relevant Land. It observed that the government of the Land ‘may have an interest in not complying with the provisions with regard to the protection of personal data’ because it processes such data itself, or because it has an interest in having access to personal data held by third parties, particularly for taxation or law enforcement purposes, or because it has an interest in companies which are economically important to the Land not being troubled by the supervisory authorities.  28 My emphasis. Judgment in Commission v Germany, C‑518/07, EU:C:2010:125, paragraph 35: ‘the government of the Land concerned may have an interest in not complying with the provisions with regard to the protection of personal data where the processing of such data by a non-public body is at issue. That government may itself be an interested party in that processing if it actually or potentially participates therein, for example, in the case of a public-private partnership or in the case of public contracts with the private sector. That government may also have a specific interest if it is necessary or even merely useful for it to have access to databases in order to fulfil certain of its functions, in particular for taxation or law enforcement purposes. Furthermore, that government may also tend to favour economic interests in the application of the provisions on the protection of individuals with regard to the processing of personal data by certain companies which are economically important for the Land or region’. It concluded from this that the fact that the supervisory authority was subject to Land scrutiny meant that it did not act with complete independence in exercising the functions entrusted to it, as required by Article 28(1) of Directive 95/46.  29 Judgment in Commission v Germany, C‑518/07, EU:C:2010:125, paragraph 36: ‘the mere risk that the scrutinising authorities could exercise a political influence over the decisions of the supervisory authorities is enough to hinder the latter authorities’ independent performance of their tasks’.

In other words, in a situation which is similar to that with which we are concerned, although Directive 95/46 does not specify the parties from which the supervisory authorities must be independent any more than Regulation No 95/93, as amended, defines ‘interested party’, the Court has held, not on the basis that the Land does have an interest in influencing the supervisory authority, but that it may have such an interest, that this hinders the authority in acting independently. This outcome is all the more remarkable for the fact that Advocate General Mazák had reached the opposite conclusion in his Opinion, considering that the Commission ought to have proved that the system of scrutiny was a failure, or that there was a consistent practice on the part of the Land which hindered the supervisory function in performing its tasks independently.  30 Opinion of Advocate General Mazák in Commission v Germany, C‑518/07, EU:C:2009:694, point 34: ‘I am of the opinion that the Commission has not satisfied the burden of proof imposed on it. It has not proved either the failure of the system of oversight nor the existence of a consistent practice on the part of the overseeing authorities of abusing their powers and thus hindering the data protection supervisory authorities in the exercise of their functions with complete independence’.

In the present case I propose to adopt reasoning similar to that of the Court in its judgment in Commission v Germany. It is sufficient in my opinion that a party may have an interest in the allocation of slots in order for the Member State concerned to be required to ensure that the coordinator is functionally separated from that party. As regards the managing body, it has been shown above that it may have various interests in the allocation of slots. Those interests arise from its status as managing body, just as the interests of the Land set out by the Court in Commission v Germany  31 Judgment in Commission v Germany, C‑518/07, EU:C:2010:125. arise from its status as an economic operator and as a tax and law enforcement authority.

Accordingly, in my opinion it follows from the mere fact that a party is the managing body of the coordinated airport that it is to be classified as an interested party.

In the present case, Article 5(1) of Decree-law No 109/2008 appoints the ANA as the managing body of the four coordinated airports at issue. It is thus of no relevance that the Commission’s arguments relate to the classification of managing bodies in general as interested parties, and not to the classification of the managing body at issue in the present case, the ANA, as an interested party.  32 With the exception of the argument relating to the privatisation of the ANA, referred to in point 33 of this Opinion, which, however, does not explain why the ANA has continued to deal with coordination after its privatisation. The ANA is to be regarded, simply on the basis of its status as managing body, as an interested party within the meaning of Article 4(2)(b) of Regulation No 95/93, as amended.

Accordingly, in order to establish that the Portuguese Republic has failed to fulfil its obligations under Article 4(2)(b) of Regulation No 95/93, as amended, the Commission must demonstrate that it has not ensured that the DCNS is functionally separated from the ANA. 

As I see it, it is beyond question that Article 4(2)(b) of Regulation No 95/93, as amended, does not require the Member States to create a distinct legal entity with responsibility for allocating slots.

If the intention of the EU legislature had been to require a distinct legal entity to be created, it would have stated this expressly, as it has done in other areas.  34 See, for example, Directive 2001/14/EC of the European Parliament and of the Council of 26 February 200 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (OJ 2001 L 75, p. 29), Article 14(2) of which requires the infrastructure manager to be ‘independent in its legal form, organisation and decision-making’ (my emphasis). In a case where the independence of the body responsible for path allocation, the Direction des circulations ferroviaires, was at issue, the Court held that French legislation did not ensure that that body was independent in legal form because it was a department of a railway undertaking, the Société nationale des chemins de fer français. It observed that the body ‘[did] not have legal personality separate from the SNCF’ (judgment in Commission v France, C‑625/10, EU:C:2013:243, paragraph 52). See also Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), Article 3(2) of which provides that ‘Member States shall guarantee the independence of national regulatory authorities by ensuring that they are legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services’ (my emphasis). Lastly, see Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC (OJ 2003 L 176, p. 37), Article 10(1) of which provides that ‘where the transmission system operator is part of a vertically integrated undertaking, it shall be independent at least in terms of its legal form, organisation and decision making from other activities not relating to transmission’ (my emphasis). Furthermore, the Commission’s proposal, made in the course of preparatory work relating to Regulation No 793/2004, for the coordinator to be ‘institutionally’ separated from interested parties,  35 Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports, presented by the Commission on 20 June 2001, COM(2001) 335 final, OJ 2001 C 270, p.131. See Article 4(2): ‘the Member State ... shall ensure that ... (b) at a coordinated airport the de facto independence of the coordinator shall be ensured additionally by separating the coordinator institutionally and financially from any single interested party ...’ (my emphasis). was not adopted.

In any event, as has been seen, the Commission does not maintain that the coordinator must be a distinct legal entity. This is also the position it adopted in its 2008 Communication.  36 See point 9 of this Opinion. The 2008 Communication defines functional separation as meaning, ‘inter alia’, that the coordinator ‘should act autonomously’ from the managing body and from air carriers or service providers operating from the airport concerned, and should ‘not be instructed by, and not have a duty to report back to’ them. It says nothing about the creation of a distinct legal entity.

It is thus of no importance, in determining whether the Portuguese Republic has failed to fulfil its obligations under Article 4(2)(b) of Regulation No 95/93, as amended, that it has not endowed the DCNS with legal personality.  37 It is true that the Court interpreted Article 6 of Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment (‘Directive 88/301/EEC’) (OJ 1988 L 131, p. 73), which provided for the approval of telecommunications terminal equipment to be entrusted ‘to a body independent of’ public or private undertakings offering goods or services in the telecommunications sector, as prohibiting such approval from being entrusted to a department of the Ministry for Posts and Telecommunications, on the ground that that ministry was also responsible, amongst other things, for operating the network (judgment in Taillandier, C‑92/91, EU:C:1993:854, paragraph 15). However, besides the fact that that provision refers to an independent ‘body’, whereas Article 4(2)(b) of Regulation No 95/93, as amended, merely requires ‘independence’ on the part of the coordinator, such an interpretation would be contrary to the preparatory work relating to Regulation No 793/2004, referred to in point 74 of this Opinion.

In identifying the criteria to be used in assessing functional separation, it seems to me that the case-law relating to Article 28(1) of Directive 95/46  38 See point 62 of this Opinion. It is true that, unlike Article 4(2)(b) of Regulation No 95/93, as amended, this provision does not require functional separation of data protection authorities. However, it refers to those authorities acting ‘with complete independence’ in exercising their functions, thus echoing Article 4(2)(b) of Regulation No 95/93, as amended, under which the functional separation of the coordinator is simply a means of ensuring its independence: the Member State is to ensure ‘the independence of the coordinator ... by separating the coordinator functionally from any single interested party’ (my emphasis). provides some guidance which is useful in this case. Among the factors taken into consideration by the Court in determining whether the national supervisory authority is operating with complete independence within the meaning of Article 28(1) of Directive 95/46 are: instructions from a third party (the State) which are binding on the national supervisory authority,  39 Judgment in Commission v Austria, C‑614/10, EU:C:2012:631, paragraph 42; judgment in Commission v Hungary, C‑288/12, EU:C:2014:237, paragraph 52. a hierarchical relationship between the authority’s staff and the State, enabling the latter to supervise the activities of staff and, potentially, to impede their promotion;  40 Judgment in Commission v Austria, C‑614/10, EU:C:2012:631, paragraphs 48 to 51. the fact that the staff of the national supervisory authority is made up entirely of federal officials, or in other words is interlinked with the federal government;  41 Judgment in Commission v Austria, C‑614/10, EU:C:2012:631, paragraph 61. the possibility of early termination of the national supervisory authority’s mandate.  42 Judgment in Commission v Hungary, C‑288/12, EU:C:2014:237, paragraph 55.

The Court has adopted similar criteria in determining whether an entity responsible for approving telecommunications terminal equipment is, as required by Article 6 of Directive 88/301, ‘independent’  43 See footnote 37 above. (staff made up of members of an interested third party),  44 Judgment in Tranchant, C‑91/94, EU:C:1995:374, paragraph 21: the director of the laboratory responsible for the tests carried out prior to approval of telecommunications terminal equipment was an employee of France Télécom, the operator of the telecommunications network. and in determining whether the authority responsible for issuing an opinion on the environmental effects of a plan met the requirement of ‘functional separation’ (administrative and human resources of the authority’s own).  45 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30) provides, in Article 6(3), that Member States shall designate the authorities to be consulted as to the environmental effects of implementing plans and programmes. While this provision does not require those authorities to be independent, or to be functionally separated from the parties producing those plans, the Court introduced such a requirement. It held that if, under the legislation of a Member State, a single authority is responsible both for producing a plan and for giving its opinion as to the environmental effects of that plan, there must be ‘functional separation’ within the body. The Court defined such functional separation as ‘meaning, in particular, that it is provided with administrative and human resources of its own’ (judgment in Seaport (NI) and Others, C‑474/10, EU:C:2011:681, paragraph 42).

It seems to me that the criteria set out in points 77 and 78 above can be applied in assessing whether the coordinator is functionally separate, as required by Article 4(2)(b) of Regulation No 95/93, as amended. I find it difficult to see how the coordinator could claim to be independent if it received binding instructions from a third party, if it did not have its own staff, or if there was a hierarchical relationship between its staff and an interested party. Further criteria should be taken into consideration, particularly the fact, where applicable, that the coordinator has legal personality. As the Commission maintains, while Regulation No 95/93, as amended, does not require a distinct legal entity to be created, this factor is nonetheless relevant in assessing whether the coordinator is independent.

As to the independent system of financing, for which express provision is made in Article 4(2)(b) of Regulation No 95/93, as amended, is this one of the criteria to be taken into account in assessing functional separation, or is it a separate condition which applies cumulatively with that of functional separation?

If the independent system of financing were to be regarded as a separate condition, there would be an infringement of Article 4(2)(b) of Regulation No 95/93, as amended, wherever the coordinator was not financially independent, even if it met the requirement of functional separation from interested parties, defined by means of the criteria set out in points 77 to 79 above. If, on the other hand, independent financing is simply one of the criteria by which functional separation is to be assessed, infringement of Article 4(2)(b) of Regulation No 95/93, as amended, could not be established simply on the ground that the coordinator was not financially independent.

I consider that the existence of an independent system of financing should be regarded simply as one of the criteria by which functional separation of the coordinator is to be assessed.

There is no coordinating conjunction between the two sentences of Article 4(2)(b) of Regulation No 95/93, as amended, and thus nothing in the wording of the provision to suggest that the second sentence, which sets out the requirement for an independent system of financing, is cumulative with the first, which requires the Member States to ensure functional separation between the coordinator and interested parties.

Furthermore, I note that, during the course of preparatory works relating to Regulation No 793/2004, the Commission proposed that Article 4(2)(b) of Regulation No 95/93 should be amended so as to provide that ‘the de facto independence of the coordinator shall be ensured additionally by separating the coordinator institutionally and financially from any single interested party’, and that the Member State should ensure ‘that sufficient resources are made available in such a way that the financing of the coordination activities cannot affect the independence of the coordinator’.  46 See footnote 35 above (my emphasis). The Economic and Social Committee had, for its part, opined that ‘Member States must offer indemnification to coordinators so that they may be clear to pursue their brief and principles unfettered’.  47 Opinion of the Economic and Social Committee on the ‘Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports’ (OJ 2002 C 125, p. 8), paragraphs 4.5.2.1 and 5.2. These proposals were not adopted: Article 4(2)(b) of Regulation No 95/93, as amended, does not provide that the coordinators’ operating costs are to be reimbursed (that it is to be ‘indemnified’, to use the Economic and Social Committee’s expression), still less that it should have its own budget.

It is thus apparent from the preparatory work that the Member States are not required to make sufficient resources available to the coordinator to cover its operating costs. Nor are they required, in my view, to provide it with a separate budget, as the EU legislature declined to require financial separation of the coordinator. In those circumstances, it seems to me that it would be illogical to maintain that independent financing is a separate condition, as the Member States have considerable discretion as to how such financing is to be provided. In particular, that discretion is broad enough to permit the Member States not to provide the coordinator with resources sufficient to cover its operating costs, which would seem to be a necessary condition of financial independence.

I would emphasise, in this regard, that the 2008 Communication, which refers to separate accounts being kept by the coordinator, as well as to a separate budget and diversity in its sources of finance,  48 See point 9 of this Opinion. cannot be regarded as imposing obligations of that kind on the Member States. The legal basis of Regulation No 95/93, as amended, is Article 84(2) of the Treaty establishing the European Community, which empowered the Council, deciding by qualified majority, to lay down provisions for air transport. Thus, only the Council had power to impose obligations on Member States which were not contained in Regulation No 95/93, as amended, and the Commission could not do so by means of a communication.

Incidentally, that would not seem to have been the Commission’s intention, as the 2008 Communication states, in the introduction, that its purpose is simply ‘to state the Commission’s views’,  49 See the 2008 Communication, Introduction, p.3. See also the Conclusion of the 2008 Communication, p.8, which states that ‘in the light of ... monitoring, the Commission will consider whether it is necessary to make a proposal to amend the Regulation’. and the Commission says only that the coordinator ‘should’ keep separate accounts, have a separate budget, and be financed by several different parties.  50 See the 2008 Communication, paragraph 1, p. 4: ‘the coordinator should therefore keep separate accounts and budgets and not rely for the financing of his activities only on the airport managing body, a service provider nor a single air carrier’ (my emphasis).

I note, finally, that the 2008 Communication was not published in the Official Journal of the European Union, that it was adopted 4 years after Regulation No 793/2004, and that, although the Commission presented a proposal, on 1 December 2011, which contained some of the same material as the 2008 Communication, that proposal has not, so far, led to an amendment of Regulation No 95/93.  51 Proposal for a Regulation of the European Parliament and of the Council on common rules for the allocation of slots at European Union airports (recast), 1 December 2011, COM(2011) 827 final. The Commission’s proposal would add a new subparagraph to Article 4(2)(b) of Regulation No 95/93 (which would become Article 5(3)(c)): ‘the financing referred to under point (c) shall be provided by the air carriers who operate in the coordinated airports and by the airports in such a way as to ensure that the financial burden is distributed equitably among all interested parties and that the financing does not largely depend on a sole interested party. The Member States shall ensure that the financial, human, technical and material resources and expertise required by the coordinator for carrying out his duties are at his disposal at all times’.

Thus it does not assist the Commission, in establishing that the Portuguese Republic has failed to fulfil its obligations, to rely on the 2008 Communication.  52 See, to that effect, Opinion of Advocate General Jääskinen in Commission v Germany, C‑556/10, EU:C:2012:528, point 60; and judgment in Commission v Germany, C‑556/10, EU:C:2013:116, paragraph 62.

In my view, the Commission has not demonstrated that the DCNS is not functionally separate from the ANA.

Undoubtedly, the fact that the DCNS is a department of the ANA, rather than a separate entity with legal personality, does not tell in favour of its independence. The same is true of the fact that the DCNS is financed entirely by the ANA, the slot allocation charge provided for by Article 11 of Decree-law No 109/2008 not having been implemented, and its budget is approved by the ANA. 

However, those two considerations must be balanced against the fact that the DCNS has its own staff, and that the Commission has not demonstrated that the ANA can interfere in the allocation of slots.

First, the Commission does not dispute that the DCNS has its own staff, devoted entirely to slot allocation activities. It has not put forward any matter tending to show that there is a hierarchical relationship between the staff of the DCNS and that of the ANA, such as the promotion of DCNS staff being decided by the management of the ANA, or the management of the ANA being able to penalise DCNS staff. The only argument advanced by the Commission in this regard relates to the absence of any ‘Chinese wall’ between the DCNS and the ANA, that is, of any organisational structure internal to the ANA which prevents confidential information from passing between the DCNS and other departments of the ANA. That argument is not convincing: I find it difficult to see how a requirement for a ‘Chinese wall’ can arise from Article 4(2)(b) of Regulation No 95/93, as amended, which makes no reference to the coordinator’s staff.

Secondly, the Commission has not established that the ANA is able to give instructions to the DCNS. It is not sufficient, in this regard, simply to rely on general considerations of Portuguese company law, under which the board of directors of any limited company, such as the ANA, manages the activities of the company, including its departments, and examines the company’s annual report and annual accounts, including the separate accounts of the DCNS. To maintain that the DCNS is not functionally separate from the ANA because the board of directors of the ANA manages the activities of the company amounts, it seems to me, in reality, to maintaining that it is not functionally separate because it is a division of the limited company which is the ANA. However, since Article 4(2)(b) does not require Member States to ensure that the coordinator is legally separated from interested parties, but only that it is ‘functionally’ separated, the Commission’s argument cannot succeed.  53 See, to this effect, judgment in Commission v France, C‑625/10, EU:C:2013:243, paragraph 67.

I note, in this regard, that the Commission has not addressed the decision process of the DCNS, and has not examined whether the governing organs of that department kept those of the ANA informed and consulted them before taking decisions, or whether they received instructions from the ANA relating to individual cases, or simply general guidance, or no instructions at all. Such an examination was all the more necessary given that the Portuguese Republic asserts, in its defence and its rejoinder, that the decisions of the DCNS are not subject to the evaluation or the approval of the ANA’s board of directors.

Thirdly, there is no dispute that the DCNS kept separate accounts. Article 5(2) of Decree-law No 109/2008 makes express provision to that effect.  54 See point 13 of this Opinion.

As to the fact that, when the ANA was privatised, the Portuguese Republic announced the creation of an independent entity which was to be responsible for the allocation of slots, I note, first, that the decision to privatise the ANA was taken only a month before the reasoned opinion  55 The decision to privatise the ANA was adopted on 28 December 2012, the reasoned opinion on 25 January 2013. See points 15 and 20 of this Opinion. and that the privatisation seems to have taken place a month after the reasoned opinion,  56 According to the Commission, the transfer took place on 21 February 2013. secondly, that, if the Portuguese government did not wish to delegate the activity of coordination to a private undertaking, which would not have been prohibited by Regulation No 95/93, as amended, it would have had no choice but to create a new entity for this purpose, given that it was privatising the managing body and the coordinator was a department of that body.

Finally, it is true that when questioned at the hearing, the Portuguese Republic was not able to specify the nature or details of procedure followed in appointing the coordinator. However, leaving aside the fact that the Commission did not raise this matter either in the application or in its reply, I would point out that these matters relate to Article 4(1) of Regulation 95/93, as amended, which requires Member States to ensure the appointment of a qualified person, rather than Article 4(2) of that regulation. The only allegation made by the Commission against the Portuguese Republic is that it has failed to fulfil its obligations under Article 4(2); nowhere does the Commission refer to Article 4(1).

It follows that the Commission has not demonstrated that the Portuguese Republic has failed to fulfil its obligation under Article 4(2)(b) of Regulation No 95/93, as amended, to ensure that the coordinator is independent of the managing body of the coordinated airports.