Resolution on the case No. 1 05/69-03 on violation of antimonopoly legislation
OAO «Vnukovo Airport»
119027 Moscow
1st Reysovaya st. 12
OOO «Provider Service»
113035 Moscow
Kosmodamianskaya st.
40-42 bldg. 3
RESOLUTION
on the case No. 1 05/69-03 on violation of antimonopoly legislation
30 July 2003 Moscow
The Commission of the MAP of Russia on consideration of the case No. 1 05/69-03 on violation of antimonopoly legislation consisting of:
Chairman of the Commission:
Golomolzin A.N. Deputy Minister
Members of the Commission:
Seleznev S.S. - Head of the Division of Investigations and Administrative Proceedings of the Legal Department
Anikin E.I. - Head of the Transport Division of the Department of Competition Policy in the Fuel and Energy Complex, Communications and Transport
Eliseev A.A. - Leading Expert of the Department of Competition Policy in the Fuel and Energy Complex, Communications and Transport
with presence of:
Zamkov V.V., Kozmin L.N. - representing OAO «Vnukovo Airport»
Kolobaev I.V., Akimov I.V. - representing OOO «Provider Service»
having considered the case No. 1 05/69-03 on violation by OAO «Vnukovo Airport» (119027 Moscow 1st Reysovaya st. 12) of Article 5 of the RSFSR Law of 22 March 1991 No. 948-1 «On Competition and Restriction of Monopolistic Activities in the Commodity Markets» in part of creation of discriminatory conditions of accessing the market of flight meals supply for the passengers of aircrafts in Vnukovo airport,
FOUND OUT THE FOLLOWING:
1. MAP of Russia got an application from OOO «Provider Service» (hereinafter the «Applicant») with the request to examine the activities of administration of OAO «Vnukovo Airport» in terms of compliance with the Russian Federation antimonopoly regulations.
The application (letter of 23 October 2002 No. 058, p. 1-2) states that the catering shop of the Applicant has been supplying flight meals to many air companies, including GTK «Rossiya», «Airlines-400», «AVKOM», «VIP-Service 2000».
The Applicant indicates that certain air companies making flights from Vnukovo airport were asking OOO «Provider Service» to supply flight meals for the relevant flights. On several occasions OAO «Vnukovo Airport» was issuing one-time passes to the airport territory for supplying flight meals for the agreed flights of air companies. The Applicant approached OAO «Vnukovo Airport» several times (copies of letters of 24 October 2001 No. 249 and of 31 July 2002 No. 033, pp. 34-35) asking to conclude a permanent agreement, but was refused (copy of the letter No. 72/OS of 7 October 2002, p. 36).
Additionally, OAO «Vnukovo Airport» received letters from the air companies which are supplied with flight meals by the Applicant asking to conclude the agreement with OOO «Provider Service» (copies of letters of 20 June 2003 w/o No., of 16 June 2003 No. 45/03, of 17 June 2003 No. 36/02, pp. 232-234).
In the Applicant's opinion, OAO «Vnukovo Airport», having refused to conclude an agreement on flight meals supply for the passengers of the aircrafts in the territory of Vnukovo airport, limits competition at the market of flight meals supply for the passengers of the aircrafts in the territory of Vnukovo airport, in part of creation of discriminatory conditions of accessing the said market and also infringes interests of the air companies, which have contracts with the Applicant.
2. OAO «Vnukovo Airport» filed to the Commission its objection to the application of OOO «Provider Service» (letter of 30 April 2003 No. 52, pp. 47-48) referring on impossibility of conclusion of agreement with the Applicant since in Vnukovo airport there operate four catering shops which completely satisfy the needs of air companies working on the airport territory.
OAO «Vnukovo Airport» is the natural monopoly and under resolution of the Board of the MAP of Russia No. 16/1 of 28 April 1998 has been included into the Register of Natural Monopolies on Transport in the field of airport services and in this part interacts exclusively with servicing aircrafts but not with the companies supplying flight meals for the said aircrafts. Therefore, when concluding a permanent agreement with a catering shop OAO «Vnukovo Airport» is mainly guided by requests of air companies having agreements and willing to be served by a particular catering shop in the territory of Vnukovo airport.
OAO «Vnukovo Airport» states that on the types of activities, where it is not a natural monopoly, OAO «Vnukovo Airport» acts in accordance with the provisions of the Russian Federation Civil Code on freedom of will of parties in conclusion of agreements and is entitled to choose contractors independently. Therefore, any compulsion to conclude an agreement with the Applicant contradicts to civil legislation.
Territory of Vnukovo airport is a restricted area and therefore increase of the number of organizations carrying out business activities on the airport territory would result in increase amount of traffic and decrease the level of safety of air flights. The main reason for conclusion of an agreement is servicing regular flights by a catering shop, which is performed by four catering shops but not the Applicant, which services only flights which are not within the central schedule. The criterion of regularity of flights means servicing of at least two flights a week.
The application of OAO «Vnukovo Airport» states that the Applicant does not have special means of transportation, which is necessary for flight meals supply to flights of the air companies, which may infringe the technology of aircrafts servicing.
Moreover, location of the Applicant catering shop outside Vnukovo airport may result in loosing of capability of the administration of Vnukovo airport to control technological process of preparing flight meals in a catering shop. As an argument OAO «Vnukovo Airport» refers to recommendations of the Ministry of Health Protection of the Russian Federation (copy of the extract from Sanitary Rules 2.5.1.788-99, pp. 51-52).
3. Having listened to explanations of the parties and researched the submitted documents, the Commission found out the following circumstances:
OAO «Vnukovo Airport» has agreements with four catering shops (copies of foundation documents of OOO «Alazani-Edem Catering», OOO «Eurasia Grand Service», ZAO «Vnukovo-Evrest», ZAO «Restaurant at MA Vnukovo» in accordance with the decision of 26 May 2003 No. AG/6096, pp. 107-109), carrying out activities on flight meals supply to the aircrafts on the airport territory, one of which is located on the airport territory, another one is located in the territory of Sheremetyevo-1 airport (copies of foundation documents of OOO «Alazani-Edem Catering», pp. 122-142), which is substantially further than the Applicant's catering shop (copies of foundation documents of OOO «Provider Service», pp. 9-32).
OAO «Vnukovo Airport» received letters from the air companies which are in contractual relations with the Applicant (copies of agreements, pp. 236-263) asking to conclude the agreement with the Applicant (copies of letters of 20 June 2003 w/o No., of 16 June 2003 No. 45/03, of 17 June 2003 No. 36/02, pp. 232-234).
Pursuant to the decision of 26 May 2003 No. AG/6096 (pp. 107-109), OAO «Vnukovo Airport» was asked to provide information on inquiries of air companies sent to OAO «Vnukovo Airport» with request to establish contractual relations with the catering shops, which are currently acting in the territory of Vnukovo airport. In response to this inquiry OAO «Vnukovo Airport» by its letter of 20 June 2003 No. 05.14-107 (p. 264) informed about absence of such information.
In case of availability of agreements between the Applicant and the air companies carrying out their activities in the territory of Vnukovo aiport, access of the Applicant's employees to the airport territory for supplying flight meals depends on existence of contractual relations with OAO «Vnukovo Airport».
Without concluding an agreement with OAO «Vnukovo Airport» on servicing the flights of the air companies carrying out activities in the territory of Vnukovo airport, employees of the catering shops can access the airport territory only at the request of the air company for one-time servicing of the flight, which shall be submitted by the air company 48 hours before the arrival (departure) of the aircraft. As the Applicant states, in accordance with the agreement with the air company the catering shop while servicing the aircraft performs not only uploading of the flight meals onboard of the aircraft but also unloading of the necessary equipment after the landing. In some cases the aircraft owned by the air company having contractual relations with OOO «Provider Service» may land in Vnukovo airport with simultaneous filing by the said air company of the request for servicing of the flight in such a term, in which OOO «Provider Service» will be unable to duly perform its obligations or to perform them at all, since it does not have a permanent access to the airport territory, and accordingly a relevant technical facilities for servicing the aircraft after its landing. These circumstances put OOO «Provider Service» in unequal position in comparison with other catering shops supplying flight meals for the aircraft in the territory of Vnukovo airport and having permanent agreements with OAO «Vnukovo Airport», and also infringe interests of the companies being in contractual relations with the Applicant.
OAO «Vnukovo Airport» is the natural monopoly and under resolution of the Board of the MAP of Russia No. 16/1 of 28 April 1998 has been included into the Register of Natural Monopolies on Transport in the field of airport services.
OAO «Vnukovo Airport» concludes standard agreements with air companies on airport services for regular flights (copy of the standard agreements, pp. 110-113) or on airport services for flights beyond the central schedule (copy of the standard agreements, pp. 114-121). In accordance with clause 2.2.24 of the standard agreement on airport services for regular flights (p. 112) «while providing service in Vnukovo Airport, the air company is obliged to use services provided by OAO «Vnukovo Airport» or handling companies specifically contracted by OAO «Vnukovo Airport» to provide such types of services (operative technical maintenance, flight meals supply and others).» Therefore, the right to service regular flights of air companies in the territory of Vnukovo airport appears only after conclusion of a relevant agreement between the catering shop and OAO «Vnukovo Airport». Such circumstance disadvantages OOO «Provider Service» in comparison with other catering shops carrying out activities on supplying flight meals to the aircrafts in the territory of Vnukovo airport and having permanent agreements with OAO «Vnukovo Airport».
Provision of services on supply of flight meals to the aircrafts is directly connected with airport services. In order to supply flight meals to the aircrafts one has to get the access to the airport territory. Such right of access is granted only by the airport administration represented by OAO «Vnukovo Airport» on the basis of a one-time request of the air company on supply of flight meals to the aircraft or in accordance with the agreement concluded between OAO «Vnukovo Airport» and the catering shop.
Therefore, OAO «Vnukovo Airport» holds dominant position at the market of servicing of aircrafts in the territory of Vnukovo airport, which allows OAO «Vnukovo Airport» to have decisive influence on the general conditions of activities of business entities carried out in the territory of Vnukovo airport, including flight meals supply to the air companies acting in the territory of Vnukovo airport up to restriction of access of the said business entities to the territory of Vnukovo airport.
By refusing to conclude an agreement with OOO «Provider Service» OAO «Vnukovo Airport» restricts competition at the market of flight meals supply to the aircrafts in the territory of Vnukovo airport, infringes interests of the air companies having contractual relations with OOO «Provider Service» and creates the conditions of access to the said market, which disadvantage OOO «Provider Service» in comparison with other business entities having agreements with OAO «Vnukovo Airport» on the right to supply flight meals to the air companies' aircrafts making flights from/to Vnukovo airport.
Article 5 of the RSFSR Law of 22 March 1991 No. 948-1 «On Competition and Restriction of Monopolistic Activities in the Commodity Markets» (hereinafter the «Competition Law») prohibits actions (inaction) of a business entity holding a dominant position, which result or might result in prevention, restriction, elimination of competition and/or infringe the interests of other business entities, including such actions (inaction) as creation of conditions of accessing the commodity market, exchange, consumption, purchase, production, sale of goods, which disadvantage one or several business entities compared to other business entities (discriminatory conditions).
Therefore, OAO «Vnukovo Airport» violates Article 5 of the Competition Law by its actions, which restrict competition at the market of flight meals supply for passengers of air companies through creation of discriminatory conditions of accessing the said market.
On the basis of the above and pursuant to Article 12, clause 1 Article 27 of the Competition Law and clause 2.12 of the Rules of Consideration of Cases on Violation of Antimonopoly Legislation, approved by the Order of the MAP of Russia of 25 July 1996 No. 91, the Commission of the MAP of Russia
HAS DECIDED
1. To acknowledge OAO «Vnukovo Airport» as having violated clause 1 Article 5 of the Competition Law.
2. To issue injunction to OAO «Vnukovo Airport» on cessation of violation of antimonopoly legislation expressed in creation of discriminatory conditions of accessing the market of flight meals supply for passengers of the aircrafts in Vnukovo airport, which disadvantage OOO «Provider Service» in comparison with other business entities having agreements with OAO «Vnukovo Airport» on the right to supply flight meals to the air companies' aircrafts making flights from/to Vnukovo airport.
Chairman of the Commission, Deputy Minister - Golomolzin A.N.
Members of the Commission: Seleznev S.S., Anikin E.I., Eliseev A.A.