“PART II RESTRICTIONS ... Restrictions applicable to roads specified in Schedule C 5. No person shall cause or permit any vehicle to stop at any time in any length of carriageway or on any grass verge, concrete verge or hard standing within a verge, footway, vehicle access-way or pedestrian access-way immediately adjacent to the carriageway of the roads specified in Schedule C. PART III EXCEPTIONS AND EXEMPTIONS FROM RESTRICTIONS Persons boarding or alighting from vehicles 6. Nothing in Article 5 of this Order shall render it unlawful to cause or permit a vehicle to stop in any restricted road for so long as may be necessary for the purpose of enabling a person to actively board or alight from the vehicle or to load thereon or unload therefrom his/her personal luggage.”
“Persons alighting from vehicles Nothing in Article 5 of this Order shall render it unlawful to cause or permit a vehicle to stop in any restricted road for as long as may be necessary for the purpose of enabling a person to actively alight from the vehicle or to unload therefrom his/her personal luggage. For the avoidance of doubt, picking up passengers and picking up or dropping off vehicles is not permitted.”
“2.2 A permit may be issued where the issuer is satisfied that the activity cannot be reasonably carried out by parking the vehicle in a car park and that one of the following criteria has been met: …(d) the permit(s) are essential to the efficient operation of the BAA licensed valet operation or Kerbside Check-in activity on the forecourt.”
“3.1 Subject to the issuer being satisfied that the applicant meets one or more of the eligibility criteria in section 2 above, the applicant will need to provide evidence that the activity cannot be facilitated from a car park…”
“173 Furthermore, the list of abusive practices contained in Article 82 EC [an equivalent to section 18 for practical purposes] is not exhaustive, so that the practices there are merely examples of abuses of a dominant position. The list of abusive practices contained in that provision does not exhaust the methods of abusing a dominant position …”
“with the possibility of eliminating competition from [another] undertaking” and where on the facts one of the companies refused to supply: “thereby eliminating all competition on an ancillary market for the benefit of its associate.”
“[A refusal to deal] will not be permissible where the refusal leads to reduced competition and higher prices, or reduces in any other way the quality of service or goods in relation to price to the consumer.”
“41. Therefore, even if that case-law on the exercise of an intellectual property right were applicable to the exercise of any proprietary right whatever, it would still be necessary, for the Magill judgment to be effectively relied upon in order to plead the existence of an abuse within the meaning of Article 86 of the Treaty in a situation such as that which forms the subject-matter of the first question, not only that the refusal of the service comprised in home delivery be likely to eliminate all competition in the daily newspaper market on the part of the person requesting the service and that such refusal be incapable of being objectively justified, but also that the service in itself be indispensable to carrying on that person’s business, inasmuch as there is no actual or potential substitute in existence for that home-delivery scheme.”
“Nor is it necessary to demonstrate that all competition on the market would be eliminated. What matters, for the purpose of establishing an infringement of Article 82 EC, is that the refusal at issue is liable to, or is likely to, eliminate all effective competition on the market. It must be made clear that the fact that the competitors of the dominant undertaking retain a marginal presence in certain niches on the market cannot suffice to substantiate the existence of such competition.”
“If the Commission were required to wait until all competitors were eliminated from the market, or until their elimination was sufficiently imminent, before being able to take action under Article 82 EC, that would clearly run counter to the objectives of that provision, which is to maintain undistorted competition in the common market and, in particular, to safeguard the competition that still exists on the relevant market.”
“(1) An abuse of a dominant position may occur if a dominant undertaking, without objective justification, refuses supplies to an established existing customer who abides by regular commercial practice, at least where the refusal of supply is disproportionate and operates to the detriment of consumers ... (2) Such an abuse may occur, in particular, if the potential refusal of the refusal to supply is to eliminate a competitor of the dominant undertaking in a neighbouring (e.g. downstream) market where the dominant undertaking is itself in competition with the undertaking potentially eliminated, at least if the goods or services in question are indispensable for the activities of the latter undertaking, and there is a potential adverse effect on consumers ... (3) It is not an abuse to refuse access to facilities that have been developed for the exclusive use of the undertaking that has developed them, at least in the absence of strong evidence that the facilities are indispensable to the service provided, and there is no realistic possibility of creating a potential alternative ... 312. The foregoing propositions suffice for the purposes of the decision in this case but are not intended to be an exhaustive statement of the issue of refusal to supply by a dominant firm under the Chapter II prohibition [i.e. section 18]. For example, if a competitor is substantially weakened but not eliminated, it is not necessarily the case that no abuse has occurred, in our view.”
“175. It is apparent from the case-law of the Court that, in order to determine whether the undertaking in a dominant position has abused such a position by its pricing practices, it is necessary to consider all the circumstances and to investigate whether the practice tends to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, or to strengthen the dominant position by distorting competition …”
“54. TeliaSonera maintains, in that regard, that in order specifically to protect the economic initiative of dominant undertakings, they should remain free to fix their terms of trade, unless those terms are so disadvantageous for those entering into contracts with them that those terms may be regarded, in the light of the relevant criteria set out in [Bronner] as entailing a refusal to supply. 55. Such an interpretation is based on a misunderstanding of that judgment. In particular, it cannot be inferred from paragraphs 48 and 49 of that judgment that the conditions to be met in order to establish that a refusal to supply is abusive must necessarily also apply when assessing the abusive nature of conduct which consists in supplying services or selling goods on conditions which are disadvantageous or on which there might be no purchaser. 56. Such conduct may, in itself, constitute an independent form of abuse distinct from that of refusal to supply.”
“Moreover, if Bronner were to be interpreted otherwise, in the way advocated by TeliaSonera, that would as submitted by the European Commission, amount to a requirement that before any conduct of a dominant undertaking in relation to its terms of trade could be regarded as abusive the conditions to be met to establish that there was a refusal to supply would in every case have to be satisfied, and that would unduly reduce the effectiveness of Article 102 TFEU.”
“56. First, it is apparent that the right to choose one's trading partners and freely to dispose of one's property are generally recognized principles in the laws of the Member States, in some cases with constitutional status. Incursions on those rights require careful justification. “57. Secondly, the justification in terms of competition policy for interfering with a dominant undertakings freedom to contract often requires a careful balancing of conflicting considerations. In the long term it is generally pro-competitive and in the interests of consumers to allow a company to retain for its own use facilities which it has developed for the purpose of its business. For example, if access to a production, purchasing or distribution facility were allowed too easily there would be no incentive for a competitor to develop competing facilities. Thus while competition was increased in the short term it would be reduced in the long term. Moreover, the incentive for a dominant undertaking to invest in efficient facilities would be reduced if its competitors were, upon request, able to share the benefits. Thus the mere fact that by retaining a facility for its own use a dominant undertaking retains an advantage over a competitor cannot justify requiring access to it.”
“62. In assessing such conflicting interests [viz. the interests of the consumer and the interests of a property owner] particular care is required where the goods or services or facilities to which access is demanded represent the fruit of substantial investment. That may be true in particular in relation to refusal to license intellectual property rights. Where such exclusive rights are granted for a limited period, that in itself involves a balancing of the interest in free competition with that of providing an incentive for research and development and for creativity. It is therefore with good reason that the Court has held that the refusal to license does not of itself, in the absence of other factors, constitute an abuse.”
“ 64. While generally exercise of intellectual property rights will restrict competition for a limited period only, a dominant undertaking’s monopoly over a product, service or facility may in certain cases lead to permanent exclusion of competition on a related market. In such cases competition can be achieved only by requiring a dominant undertaking to supply the product or service or allow access to the facility. If it is so required the undertaking must however in my view be fully compensated by allowing it to allocate an appropriate proportion of its investment costs to the supply and to make an appropriate return on its investment having regard to the level of risk involved. I leave open to question whether it might in some cases be appropriate to allow the undertaking to retain its monopoly for a limited period. “65. It seems to me that intervention of that kind, whether understood as an application of the essential facilities doctrine or, more traditionally, as a response to a refusal to supply goods or services, can be justified in terms of competition policy only in cases in which the dominant undertaking has a genuine stranglehold on the related market. That might be the case for example where duplication of the facility is impossible or extremely difficult going to physical, geographical or legal constraints or is highly undesirable for reasons of public policy. It is not sufficient that the undertakings controlled over a facility should give it a competitive advantage. “66. I do not rule out the possibility that the cost of duplicating a facility might alone constitute an insuperable barrier to entry … In that regard it seems to me that it will be necessary to consider all the circumstances, including the extent to which the dominant undertaking, having regard to the degree of amortisation of its investment and the cost of upkeep, must pass on investment or maintenance costs in the prices charged on the related market (bearing in mind that the competitor, who having duplicated the facility must compete on the related market, will have high initial amortisation costs but possibly low maintenance costs).”
“A one off opportunity to make sure everyone fully understands the wealth of historical (and recent) customer research in to car parking.”
“An undertaking which occupies a dominant position in the provision of an essential facility and itself uses that facility (i.e. a facility or infrastructure, without access to which competitors cannot provide services to their customers), and which refuses other companies access to that facility without objective justification or grants access to competitors only on terms less favourable than those which it gives its own services, infringes Article 86 if the other conditions of that Article are met.”
“Need valet solution for all terminals to improve congestion – particularly T3 and sustain good position at T5. Can’t continue with existing parking solution at T5. - set a precedent for the other terminals we can’t and don’t want to deliver. - costs£67,500 per annum for little return. - give off-airport product a great place to park.”
“That move is about Heathrow commercially keeping its options open on use of that particular space …”
“Following Counsel [sic] advice [Mr Brown] confirmed that this change was for legal reasons.”
“Recognising that Terminal 1 has the only forecourt that does not impact the road network by congestion.”
“FAG also submitted that since ramp handling is a complementary function to the landing and take-off of aircraft and subsequently influences the overall quality of the service provided by the airport, the airport operator has the obligation to control these activities. Again, this does not mean that the airport operator may retain these activities for itself, since the airport operator has the means to impose on competitors the rules that they will be bound to follow.”
“The forecourts are a key area for the Airport providing an initial or final impression to the travellers of the airport and its processes whilst providing the opportunity through effective management and control to protect and grow income”
“Forcing all Pick up traffic into the existing Car Parks at all locations would provide immediate relief to the congestion and implied safety consideration [sic] on forecourts but such a decisive measure cannot be implemented until the impact on the Car park operation is assessed. For this accurate information is required. It is recognised that the manner in which the forecourt operation is executed has a direct impact on revenue, be it in the form of lost revenue with cars failing to make use of the car Park facilities provided, with unlicensed operators conducting business detracting from the official concessions, and the cost of managing and policing. It has been recognised that there is the potential for additional income if private vehicles were to use the car park facilities provided.”
“at Terminal 3 queueing during peak periods is a regular occurrence (that is it occurs during peak periods, typically on Mondays, Fridays and Sundays). This queuing is related to available capacity, current layout/signage, and driver behaviour issues on the forecourt and on the approaches to the Terminal 3 multi-storey car park. Lack of effective management and enforcement is a further factor that contributes to queuing and it is agreed that enforcement is currently a matter for the police and Traffic Community Police Support Officers.”
“not such as to constitute an objective justification within the meaning of the Court’s judgments, since there are solutions which would allow any lack of space to be overcome.”
“… FAG’s decision not to authorise self-handling and not to admit independent handlers is not the result of an overriding need, but was a matter of choice of FAG, which did not take the measures which would have obviated the constraints imposed by the lack of space at the airport.”