Response on writ of appeal of MAP of Russia regarding the Moscow Arbitration Court verdict
[on the letterhead of Vnukovo Airport]
28.05.04 No. 15.14-149
Federal Arbitration Court of the Moscow District
Moscow, Akademika Sakharova st. 19
Plaintiff: 119027 Moscow
1st Reysovaya st. 12
OAO «Vnukovo Airport»
Defendant: 123995 Moscow
Sadovaya Kudrinskaya st. 11
Federal Antimonopoly Service of the Ministry of Economy of Russia
Third party: 113035 Moscow
Kosmodamianskaya st. 40-42 bldg. 3, «Provider Service» OOO
General Director
Suchinskaya A.N.
RESPONSE
on writ of appeal of MAP of Russia regarding the Moscow Arbitration Court verdict on the case No. A-40-38117/03-92-410 of 17 November 2003 and ruling of court of 19 March 2004
Under the Moscow Arbitration Court verdict on the case No. A-40-38117/03-92-410 of 17 November 2003 the Resolution and Directive of MAP of Russia of 30 July 2003 No. AG/9434 on the case No. 1-05/69/03 were soundly recognized invalid due to ungrounded implementation of cl. 1 Article 5 of the RSFSR Law of 22 March 1991 No. 948-1 «On Competition and Restriction of Monopolistic Activities in the Commodity Markets» - with respect to OAO «Vnukovo Airport».
The court in its ruling soundly stated that delivery of flight meals to/from aircrafts does not fall under the scope of activities of natural monopolies and is not subject to the requirements of Article 5 of the Competition Law, MAP of Russia disagrees with such conclusion of the court and insists that it is not based on Articles 3, 4, 5 of the RSFSR Competition Law.
In elaboration of validity of the court's conclusion we would like to provide the following arguments:
- in accordance with Article 4 of the RSFSR Competition Law, activities of natural monopolies are subject to regulation in the following fields: «services of transport terminals, ports and airports»;
- clause 7.2 of the Charter of OAO «Vnukovo Airport» stipulates for 46 types of operating activities, including airport servicing and ensuring norms and rules on aviation safety (in this particular case we carry out inspection of flight meals);
Order No. 121 of 6 June 2000 of the Federal Civil Aviation Service describes the term of aerodrome ensuring of aircraft flights, which includes:
- maintenance and running repairs of aerodrome pavement, drainage and water systems;
- development of changes to schemes of aircraft taxiing and other activities, which are not connected with aviation activities - inspection of flight meals, luggage, cargo.
In accordance with the License GSOA No. 003930 OAO «Vnukovo Airport» carries out airport activities, connected with servicing of aircrafts, passengers and cargos, but not connected with catering.
Article 4 of the RF Law of 17 August 1995 No. 147-FZ «On Natural Monopolies» services of transport ports and airports relate to activities of natural monopolies, however, in accordance with paragraph 2 Article 2 of the said Federal Law, regulation of activities of natural monopolies cannot apply to activities which do not relate to natural monopolies. This provision was not implemented by MAP which resulted in wrong decision while the court applied material law correctly.
By buying a ticket a passenger concludes an agreement with the carrier - air company, which in its turn concludes a set of agreements with airports of departure and entry, fuelling companies, catering companies, air traffic control companies and other organizations. This means that OAO «Vnukovo Airport» is equally distancing itself from both air companies and catering companies which deliver flight meals upon requests of air companies. We are in contractual relations with 60 air companies and upon their request we are obliged to provide access to the territory of airdrome for employees of any catering company, with which the air company has contractual relations. Otherwise the air company would sue us for reimbursement of damages, lost profit, compensation for moral harm through recourse and defamation of business reputation of the air carrier.
We have never rejected, we do not reject and we do not intend to reject access of employees of OOO «Provider Service» to aircrafts of the air company to deliver the flight meals and conclude one-time agreements (in the form of one-time passes), carry out inspection of flight meals and employees in accordance with the effective law.
Therefore, compulsion of OAO «Vnukovo Airport» to conclude a permanent service agreement, which is not within the scope of the market of airport activities - servicing of aircrafts, is illegal, since OOO «Provider Service» is engaged in catering and is in contractual relations with only one company based in the Vnukovo airport - GTK «Rossiya», whose letter states «All regular as well as charter flights of GTK «Rossiya» from Vnukovo airport are supplied with flight meals through ZAO «Vnukovo Restaurant».
Apart from the airport activities OAO «Vnukovo Airport» is engaged in 46 types of activities, including: medical service for citizens, telecommunications, power and heat supply of legal entities and individuals and some other activities, however, it does not imply that all activities fall under antimonopoly regulations and MAP has the right to initiate the proceedings and to oblige the company to conclude agreements, which would contradict Article 1 of the RF Civil Code.
Therefore, delivery of flight meals to/from aircrafts is not within the scope of activities of natural monopolies and does not fall under the requirements 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». Moreover, OAO «Vnukovo Airport» has not been and is not hindering employees of OOO «Provider Service» from delivery of flight meals to/from aircrafts of the air company, with which the said organization has a contract. Thus, it is the MAP but not the court which has applied material law incorrectly.
Moscow Arbitration Court has ruled to affirm the first instance court decision and to dismiss the complaint of the MAP of Russia due to the following reasons:
Non-normative act of a state body which is not in compliance with the law or other legal acts and violates rights and legally protected interests of legal entity is acknowledged invalid by courts under Articles 13 of the RF Civil Code and part 1 Article 198 of the Arbitration Procedural Code.
The antimonopoly body has argued in the cassation appeal that OOO «Provider Service» enjoys a different regime of access to the airport territory in comparison with other catering companies but this is not the case. Being in contractual relations with air companies, upon their requests we grant access to the aircrafts for representatives of catering companies, fuelling organizations, technical control and maintenance services, and other organizations, with which the air company is in contractual relations. The only difference is that employees of two catering shops based (located) on the airport territory get permanent passes (allowing entry of personnel and cars), while employees of OOO «Provider Service» get access to the airport territory under one-time passes, since their catering shops is located outside the airport territory and this organization delivers flight meals rather rarely.
Given the above, I would like to ask to affirm the decision and resolution of the Moscow Arbitration Court and to dismiss the cassation appeal of the FAS of Russia.
Acting General Director [signature] V.E. Alexandrov
Officer: Kozmin L.N.
Tel. 436-22-92