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The Regulation of Airport Charges

Christian Koenig, Franziska Schramm


Even infrastructure providers unaware that they qualify for access price regulation wake up one day and have to accept that their monopolistic bottlenecks cannot be remedied adequately by virtue of the concept of ‘essential facilities’ under general competition law. The so-called ‘three criteria test’ that defines the requirements for regulatory intervention and is applied by the European Commission in the telecommunications sector appears to be relevant for airportsaswell. The first criterionis thepresence ofhighandnon-transitory entrybarriers,whether of structural, legal or regulatory nature. Indeed, the relevant markets of airport infrastructure provision are exposed to these high and non-transitory entry barriers, in particular legal or regulatory hurdles. The second criterion admits only those markets which structurally do not tend towards effective competition within the relevant time horizon. The third criterion requires that the application of competition law alone would not adequately address the market failures concerned. Given the fulfillment of all three criteria of this test, it is not surprising that the regulation of airport charges was finally “kicked off” and – unlike what happened in other network industries before – not addressed in a national context but rather initiated by the Directive 2009/12/EC of 11 March 2009 of the European Parliament and of the Council.

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