Moscow District Federal Arbitration Court

MOSCOW DISTRICT FEDERAL ARBITRATION COURT





RESOLUTION



Moscow

5 July 2004 No. KA-A40/5362-04



Moscow District Federal Arbitration Court

consisting of:

Chairman Judge Agapov M.R.

Judges Letyagina V.A. and Tubolets I.V.

with participation in the hearings of:

Kozmin L.N. representing the applicant - OAO «Vnukovo Airport» by proxy of 16 April 2004 No. 5-ur;

Azarova E.E., Bashlakova-Nikolaeva I.V. representing the defendant - the Federal Antimonopoly Service by proxies of 14 May 2004 and 11 June 2004 accordingly;

Akimov I.V. representing the third party - OOO «Provider Service» by proxy of 21 June 2004;

having considered in court proceedings of 28 June 2004 a cassation appeal of the defendant - the Federal Antimonopoly Service

on the Decision of 17 November 2003

Resolution of 19 March 2004

on the case No. A-40-38117/03-92-410

of the Moscow Arbitration Court

adopted by judges Utochkin I.N., Maslennikov I.V., Ternova L.V., Kiseleva O.V. upon inquiry of OAO «Vnukovo Airport» on invalidating the decision and injunction to the MAP of Russia, third party OOO «Provider Service»

ESTABLISHED:



OAO «Vnukovo Airport» applied to the Moscow Arbitration Court with the application on invalidation of the decision of the MAP of Russia of 30 July 2003 on the case on violation of antimonopoly legislation No. 1-05/69-03 and the injunction of the MAP of Russia on cessation of violation of antimonopoly legislation No. AG/9434 of 30 July 2003.



The arbitration court engaged OOO «Provider Service» as the third party.



The Moscow Arbitration Court satisfied the claims on 17 November 2003; the appellation court did not change that verdict.



When satisfying the claim of OAO «Vnukovo Airport» the arbitration court judged by the fact that the disputable act did not conform to the legal requirements and violated the applicant's rights.





The FAS of Russia in its cassation appeal asks to cancel the decision and the resolution referring to incorrect implementation of Article 5 of the Russian Federation Law «On Competition and Restriction of Monopolistic Activities in the Commodity Markets» (hereinafter the «Competition Law»), incomplete research of the case circumstances. In the opinion of the antimonopoly body the courts made an unsounded conclusion on absence of violation of Article 5 of the Competition Law committed by OAO «Vnukovo Airport», since holding a dominating (monopolistic) position at the airport services market OAO «Vnukovo Airport» is able to influence on adjacent and dependent market of flight meals supply. This statement is confirmed by the fact that the right to supply flight meals to aircrafts originates from the agreement on the right to supply flight meals concluded with OAO «Vnukovo Airport». Those suppliers which do not have an agreement with OAO «Vnukovo Airport» can get access to the airport territory upon preliminary inquiry of the air company. Therefore the antimonopoly body considers that the suppliers of flight meals (like OOO «Provider Service»), which do not have agreements on flight meals supply to the aircrafts with OAO «Vnukovo Airport», are in unequal (discriminatory) conditions in comparison with other suppliers, which have concluded agreements on flight meals supply with OAO «Vnukovo Airport».



The antimonopoly body believes that such suppliers cannot duly perform their obligations towards the air companies in case of unscheduled landing of such air company's aircraft, since the air company cannot preliminarily file a request for one-time pass and will have to either keep the equipment and wastes onboard of the aircraft or to apply to the organizations working on the basis of the agreement with OAO «Vnukovo Airport». The defendant considers that the necessity of permanent filing of the requests for granting access to the flight meals supplier to the airport territory forces the air companies to conclude agreements with the suppliers which have concluded the agreements on flight meals supply with OAO «Vnukovo Airport».



The antimonopoly body considers unsound the court's conclusion that the adoption of the disputable acts by the MAP of Russia result in interference into the airport activity. Moreover, in the defendant's opinion, the same applies to the court's conclusion on illegality of the decision and injunction of the MAP of Russia since the latter did not provide evidence confirming that OAO «Vnukovo Airport» was hindering activities of OOO «Provider Service», since the MAP of Russia only verified that OAO «Vnukovo Airport» was creating for OOO «Provider Service» unequal conditions of activities in comparison with other business entities working at the same market of flight meals, which are two different things.



OAO «Vnukovo Airport» in its response to the cassation appeal resists the claims of the cassation appeal and requests to keep the acts being appealed unchanged.



In the court proceedings the representatives of the antimonopoly body and OOO «Provider Service» sustained their claims, while the representative of OAO «Vnukovo Airport» resisted the cassation appeal considering it unsound.



Having checked the accuracy of implementation of material and procedural laws by the first instance and appeal courts and having discussed the arguments of all parties, the cassation arbitration court do not find any grounds for invalidation of the acts being appealed, including for the reasons stated in the cassation appeal.



In accordance with the circumstances of the case, on 30 July 2003 the MAP of Russia confirmed the violation of Article 5 of the Competition Law by OAO «Vnukovo Airport» expressed in creation of the conditions of accessing the market of flight meals supply for passengers of the aircrafts in the territory of Vnukovo airport, which disadvantage OOO «Provider Service» in comparison with other business entities, which have agreements with OAO «Vnukovo Airport» on the right to supply flight meals to the air companies' aircrafts, which make flights from/to Vnukovo airport.



The injunction of the MAP of Russia of 30 July 2003 issued on the basis of the said decision ordered OAO «Vnukovo Airport» to stop violation of Article 5 of the Competition Law before 1 September 2003 by sending to OOO «Provider Service» an offer (a draft agreement on flight meals supply to the air companies' aircrafts in the territory of Vnukovo airport on non-discriminatory conditions) and to conclude that agreement in case of its acceptance.



By acknowledging the said acts of the MAP of Russia invalid, the arbitration court judged from the absence of violation of clause 1 Article 5 of the Competition Law by OAO «Vnukovo Airport» since the MAP of Russia did not provide evidence that OAO «Vnukovo Airport» was hindering activities of OOO «Provider Service» at the market of flight meals supply, that results or may result in restriction of competition in the said market and also infringes the rights of OOO «Provider Service».



The court's conclusion on absence of violation of antimonopoly legislation by OAO «Vnukovo Airport» conforms to the case materials and the terms of implementation of clause 1 Article 5 of the Competition Law.



The court stated that the actions of OAO «Vnukovo Airport» expressed in refusal to conclude an agreement with OOO «Provider Service» on the right to supply flight meals to the air companies' aircrafts, which make flights from/to Vnukovo airport, violated clause 1 Article 5 of the Competition Law. In the opinion of the MAP of Russia, such actions of OAO «Vnukovo Airport» disadvantage OOO «Provider Service» (create discriminatory conditions) in comparison with other business entities, which have agreements with OAO «Vnukovo Airport», and restrict competition in the market of flight meals supply in the territory of Vnukovo airport.



In fact, clause 1 Article 5 of 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). However, it is necessary that such actions must or may result in restriction of competition and/or infringement of interests of other business entities.



At the same time, the examined standard agreement on airport servicing of the flights states that the services are provided to the air carriers at their choice either by the airport or by handling companies, which are certified and licensed to provide such services (including flight meals supply, cl. 2.2.22 of the agreement). The court did not find out that OAO «Vnukovo Airport» is a party to the agreements on flight meals supply by the handling companies to the air carriers. This means that the access to the market of flight meals supply in the territory of Vnukovo airport is subject to availability of a certificate, license and direct agreement with the air carrier.



The court found out that OAO «Vnukovo Airport» did not prevent OOO «Provider Service» from accessing the territory of Vnukovo airport under the available direct agreements with air carriers on flight meals supply. The access was granted on the basis of one-time and temporary passes.



The MAP of Russia did not provide any evidence confirming that OAO «Vnukovo Airport» holding a dominating position in the airport services market and exclusively using the airport infrastructure, refused or prevented OOO «Provider Service» from its use in the course of performance of its obligations on flight meals supply under the direct agreements between OOO «Provider Service» and air carriers, which are serviced in Vnukovo airport.



The argument of the antimonopoly body that the access control for OOO «Provider Service» in the airport territory hinders development of its client base and withdrawal of the existing air carriers, which have agreements with OOO «Provider Service», and their transfer to the flight meals suppliers, which have agreements on the right to supply flight meals to the air companies' aircrafts, which make flights from/to Vnukovo airport (refusals of the air carriers from conclusion of the agreement, request to terminate the agreements for that reason) was not well-founded since the MAP of Russia did not provide any proof thereof.



Moreover, it appears from the decision and resolution that the access control existing for OOO «Provider Service» and absence of the agreement on flight meals supply to the air companies' aircrafts, which make flights from/to Vnukovo airport, did not prevent OOO «Provider Service» from conclusion and implementation of the agreements with the air carriers, which are serviced in Vnukovo airport.



The argument of the cassation appeal of the antimonopoly body that the absence of the agreement between OOO «Provider Service» and OAO «Vnukovo Airport» on flight meals supply prevents OOO «Provider Service» to duly perform its obligations vis-a-vis the air company in case of unscheduled landing of an aircraft of that air company in Vnukovo airport since the air company will be unable to submit a prior inquiry in due time and will have to keep the equipment and wastes onboard or to apply to the organizations working on the basis of the agreement with OAO «Vnukovo Airport», is also not well-founded since the airport services presume the airport's preliminary approval of the time of arrival and departure of the particular air companies' aircrafts. The MAP of Russia did not submit any evidence confirming the obligation of OOO «Service Provider» to supply flight meals to the aircraft of the specific air company in case of its unscheduled landing due to weather conditions or force majeure events in Vnukovo airport.



Therefore, the courts made accurate conclusion that the absence of the agreement between OOO «Provider Service» and OAO «Vnukovo Airport» on flight meals supply to the air companies' aircrafts, which make flights from/to Vnukovo airport, does not prevent OOO «Provider Service» from supplying flight meals in the territory of Vnukovo airport, i.e. it does not limit OOO «Provider Service» and the air carriers in choice of a contractor (competition in the market).



Since the decision and injunction infringe the applicant's rights in the field of entrepreneurial activities, the courts have lawfully considered them invalid.



The arguments of the cassation appeal of the antimonopoly body being unfounded shall be rejected.



On the basis of the above and pursuant to Articles 284-289 of the RF Arbitration Procedural Code, the Moscow District Federal Arbitration Court hereby



RESOLVES:



to keep the verdict of 17 November 2003 and the resolution of 19 March 2004 of the Moscow Arbitration Court on the case No. A40-3811/03-92-410 unchanged and to reject the cassation appeal of the Federal Antimonopoly Service.





Chairman: Agapov M.R.



Judges: Letyagina V.A., Tubolets I.V.