Civil Law and Airport Retail Concession Litigation in Europe

Airport retail concession litigation concerns disputes between airport operators, public authorities, duty-free operators, restaurants, luxury retailers, travel-retail companies and competing bidders concerning the right to operate commercial outlets inside an airport.

The subject is especially important because airport retail concessions combine contract law, concession/public procurement law, competition law, administrative law, property/use-of-space rights, consumer law, customs/tax rules and EU internal-market principles. The European Commission has recognised airport-retail concessions as a distinct competitive arena in which operators compete for the market through tenders or negotiations, with concessions commonly involving fixed and revenue-linked payments.

1. Meaning of an Airport Retail Concession

An airport retail concession is an agreement under which an airport operator permits a retailer to operate a commercial business within airport premises.

Examples include:

• duty-free shops;
• cosmetics and luxury goods;
• fashion stores;
• restaurants and cafés;
• convenience stores;
• souvenir shops;
• electronics;
• travel-essential shops;
• advertising and commercial kiosks;
• car-rental or passenger-service retail areas.

The retailer normally pays:

1. fixed concession rent;
2. percentage of turnover;
3. minimum annual guarantee;
4. service or common-area charges;
5. sometimes investment commitments.

European Commission practice confirms that airport retail concessions are frequently awarded for several years and may combine fixed and turnover-based payments.

2. Why Airport Retail Concession Litigation Is Complex

A single dispute may involve several legal relationships.

A. Airport operator ↔ retailer

This is principally contractual.

Typical disputes involve:

• unpaid concession fees;
• minimum guaranteed payments;
• revenue-sharing calculations;
• termination;
• renewal;
• exclusivity;
• opening-hour requirements;
• investment obligations;
• fit-out costs;
• maintenance;
• insurance;
• force majeure;
• pandemic-related losses.

B. Airport operator ↔ competing retailer

This may involve:

• unlawful tender;
• discriminatory selection criteria;
• lack of transparency;
• unfair exclusion;
• conflict of interest;
• unequal treatment;
• improper concession extension.

C. Public authority ↔ airport operator

Issues can include:

• public procurement;
• concession legislation;
• State aid;
• airport regulation;
• public property;
• competition law.

D. Retailer ↔ customers

Separate consumer disputes may concern:

• misleading prices;
• duty-free representations;
• defective goods;
• refunds;
• consumer information.

3. European Legal Framework

Important legal sources include:

1. Directive 2014/23/EU — Concessions

The Concessions Directive is central where the airport concession falls within its scope.

Important principles include:

• transparency;
• equal treatment;
• non-discrimination;
• proportionality;
• competition;
• modification of concessions;
• termination;
• remedies.

2. TFEU

Important provisions include:

• Article 49 — freedom of establishment;
• Article 56 — freedom to provide services;
• Article 101 — restrictive agreements;
• Article 102 — abuse of dominance;
• Article 107 — State aid.

3. Directive 2014/24/EU

It can become relevant where the legal arrangement is actually a public contract rather than a genuine concession.

4. Directive 2006/123/EC

The Services Directive may be relevant where scarce resources or authorisations are involved.

5. National contract and property law

The underlying concession agreement remains governed by the applicable national law.

4. Main Types of Airport Retail Concession Litigation

A. Tender and award disputes

A losing bidder may argue that:

• evaluation criteria were unclear;
• criteria were changed after bids;
• the successful bidder received preferential treatment;
• confidential information was improperly disclosed;
• the airport operator failed to provide adequate reasons;
• the tender lacked transparency.

B. Automatic renewal disputes

An existing retailer may claim a right to continue operating.

A competitor may argue that renewal should have been competitively tendered.

This issue is particularly important where the concession involves scarce commercial space.

C. Exclusivity disputes

A concession may grant exclusivity for:

• duty-free cosmetics;
• alcohol;
• tobacco;
• luxury goods;
• food;
• particular passenger zones.

A competing retailer may argue that excessive exclusivity violates competition law.

D. Concession-fee disputes

Typical issues are:

• whether turnover was correctly calculated;
• whether online sales are included;
• whether refunds reduce turnover;
• whether airport closure reduces minimum guarantees;
• whether extraordinary events justify fee reduction;
• whether concession payments constitute rent, service consideration or another form of remuneration.

5. At Least 6 Important Case Laws

There is no large body of CJEU judgments specifically deciding ordinary airport duty-free-shop contractual disputes. Therefore, the cases below include both direct airport authorities and important European concession-law authorities that apply by analogy. That distinction is important.

Case 1 — Aéroports de Paris v Commission

Case C-82/01 P, Aéroports de Paris v Commission, CJEU, 24 October 2002

Facts

The dispute concerned airport management and commercial activities at airports, including the relationship between airport management and operators providing services within the airport environment.

Principle

The Court recognised that airport management activities can constitute economic activities for EU competition-law purposes.

An airport operator possessing substantial control over airport infrastructure may therefore fall within competition law when acting economically.

Importance for retail concessions

This is highly relevant because an airport operator cannot necessarily argue:

“We are merely a public airport authority, so competition law does not apply.”

Where the airport operator commercially manages facilities and grants access to businesses, its conduct may have an economic character.

Litigation use

A retailer could potentially rely on this reasoning in disputes concerning:

• discriminatory commercial conditions;
• access to airport facilities;
• discriminatory concession charges;
• exclusion of competitors;
• abuse of dominant position.

Case 2 — Telaustria and Telefonadress

Case C-324/98, Telaustria and Telefonadress, CJEU, 7 December 2000

Principle

The CJEU established an important transparency principle for concessions having cross-border relevance.

Even where a concession falls outside the detailed procedural rules of a procurement directive, the contracting authority may still have to respect fundamental Treaty principles, particularly:

• non-discrimination;
• equal treatment;
• transparency.

The case concerned a service concession in Austria and became a foundational authority for European concession law.

Airport application

Suppose an airport authority grants a major duty-free concession without a sufficiently transparent selection process.

A disappointed European retailer could argue that the airport should have provided a genuine opportunity for competition where the concession has cross-border interest.

Key lesson

Outside a detailed procurement regime does not necessarily mean outside EU transparency principles.

Case 3 — Promoimpresa and Melis

Joined Cases C-458/14 and C-67/15, Promoimpresa, CJEU, 14 July 2016

Facts

The cases concerned concessions relating to State-owned maritime and lakeside property in Italy and automatic extension of existing concessions.

Judgment

The CJEU held that automatic extension of concessions without an appropriate selection procedure could conflict with EU law where the relevant conditions concerning scarce resources and economic activity were present.

Airport relevance

Airport commercial space is often scarce.

There may be:

• only one duty-free zone;
• limited terminal space;
• one premium retail location;
• limited restaurant locations;
• limited luxury-goods space.

Therefore, an airport cannot necessarily assume that an incumbent retailer has an indefinite right to renewal.

Example

If a 7-year duty-free concession expires and the airport simply gives another 10-year concession to the incumbent without considering applicable concession/procurement rules, a competing retailer may challenge the arrangement.

Principle

Scarce commercial opportunities can require competitive and transparent allocation.

Case 4 — Borta

Case C-298/15, ‘Borta’ UAB v Klaipėdos valstybinio jūrų uosto direkcija, CJEU, 5 April 2017

Principle

The CJEU considered restrictions imposed in a public procurement procedure and examined them through principles including:

• equal treatment;
• proportionality;
• competition;
• freedom of establishment;
• freedom to provide services.

The case concerned tender requirements and restrictions relating to subcontracting and bidder qualifications.

Airport retail application

An airport tender might require:

“The bidder must itself have operated five European airport duty-free stores.”

Such a condition could be challenged if it disproportionately excludes otherwise qualified businesses.

Similarly, requirements concerning:

• previous airport experience;
• financial capacity;
• minimum turnover;
• number of existing outlets;
• local establishment;

must be examined for justification and proportionality.

Principle

Selection criteria must be connected to the legitimate requirements of the concession and must not unnecessarily restrict competition.

Case 5 — Volotea v Commission

Case T-607/17, Volotea v Commission, General Court, 13 May 2020; appeal C-331/20 P, CJEU, 17 November 2022

Facts

The litigation concerned financial arrangements involving Sardinian airports and airlines.

The General Court considered issues including:

• State resources;
• imputability;
• economic advantage;
• market-economy-operator analysis;
• recovery.

The CJEU subsequently set aside the General Court judgments concerning Volotea and easyJet and annulled the Commission decision insofar as it concerned those airlines, finding that the Commission had not established the necessary advantage.

Airport-retail relevance

The same economic reasoning can matter where a publicly controlled airport gives a retailer:

• unusually low concession rent;
• guaranteed revenue;
• preferential commercial conditions;
• subsidised premises;
• unusually favourable renewal terms.

The question may become:

Would a comparable private airport operator have entered into the same arrangement?

Important distinction

Not every favourable commercial contract is automatically State aid.

The relevant EU State-aid conditions must be established.

Case 6 — Deutsche Lufthansa v Commission

Case C-453/19 P, Deutsche Lufthansa v Commission, CJEU, 15 July 2021

Facts

The case concerned measures involving Frankfurt-Hahn Airport, airport financing and arrangements involving airlines.

Principle

The case addressed, among other things, standing to challenge Commission State-aid decisions and the requirement that a private applicant demonstrate the necessary direct and individual concern.

Airport retail relevance

Suppose Retailer A argues that Airport X gave Retailer B an unlawful economic advantage.

There are two separate questions:

1. Was the measure actually State aid?
2. Does Retailer A have the procedural standing necessary to challenge the relevant decision?

These should not be confused.

Principle

Substantive illegality and procedural standing are separate questions.

Case 7 — Ryanair and Airport Marketing Services v Commission

Case T-77/16, Ryanair and Airport Marketing Services v Commission, General Court, 13 December 2018

This case concerned State-aid measures involving airport-related arrangements and the Commission's assessment of those measures. The General Court dealt with questions surrounding the compatibility of the measures and the Commission's decision-making.

Airport-retail analogy

The case is useful where a retailer alleges that the airport has provided an economic advantage to a competitor through contractual arrangements.

Relevant evidence may include:

• concession fee;
• passenger numbers;
• expected turnover;
• investment obligations;
• exclusivity;
• commercial risk;
• comparable airport contracts.

The underlying question is whether the arrangement reflects normal market conditions.

Case 8 — Transavia Airlines v Commission

Case T-591/15, Transavia Airlines v Commission, General Court, 13 December 2018

Background

The case involved an airport-services and marketing agreement between the Chamber of Commerce and Industry of Pau-Béarn and Transavia.

The General Court considered:

• State aid;
• imputability;
• economic advantage;
• private investor/market-economy-operator principles;
• recovery. 

Airport retail application

An airport retail concession may be scrutinised where the airport is publicly controlled and provides conditions substantially different from market conditions.

For example:

Retailer A pays €10 million annually, while Retailer B receives a concession for €2 million despite comparable passenger traffic and commercial obligations.

That difference does not automatically prove State aid, but it creates a factual issue requiring economic analysis.

6. Competition Law and Airport Retail

Airport retail markets have a distinctive structure.

The European Commission has expressly recognised two competitive dimensions:

Competition in the market

Retailers compete after receiving concessions.

Example:

Retailer A vs Retailer B for passengers' spending.

Competition for the market

Retailers compete to obtain the concession itself.

Example:

A, B and C submit bids for a 10-year duty-free concession.

The Commission has recognised this distinction in airport travel-retail merger analysis.

This distinction is extremely important in litigation.

7. Airport Operator as a Potential Dominant Undertaking

An airport can possess significant market power because airport retail space is geographically constrained.

For certain services, the relevant market may be:

the particular airport or terminal

rather than the entire city.

The Commission has noted that the individual airport can be a relevant narrow geographic market for airport retail services.

Therefore, conduct by an airport operator may potentially raise Article 102 TFEU issues if the airport has a dominant position.

8. Examples of Potential Abuse

Potentially problematic conduct could include:

Discriminatory concession charges

Retailer A:

€5 million annual fee.

Retailer B:

€1 million annual fee.

If comparable circumstances exist, the difference may require justification.

Unreasonable exclusivity

An airport grants one retailer exclusive rights over:

• perfume;
• cosmetics;
• alcohol;
• tobacco;
• food;
• electronics.

The exclusivity could raise competition questions depending on market definition, duration and effects.

Refusal of access

An airport may control essential commercial space.

A dispute may therefore concern whether access has been unjustifiably denied.

Predatory or exclusionary conduct

An airport operator with substantial market power might theoretically engage in:

• discriminatory pricing;
• margin squeezing;
• exclusionary contractual arrangements;
• tying;
• unfair conditions.

The specific facts and relevant market would determine whether Article 102 is engaged.

9. Tender-Related Litigation

A losing retailer commonly challenges:

1. Tender criteria

Were the criteria:

• clear?
• objective?
• proportionate?
• relevant to the concession?

2. Scoring

Was the evaluation performed according to the published methodology?

3. Equal treatment

Did all bidders receive the same information?

4. Confidentiality

Was one bidder given commercially sensitive information?

5. Conflict of interest

Did decision-makers have a relationship with a bidder?

6. Reasons

Did the airport adequately explain why one bidder won?

10. Concession Renewal Litigation

Renewal is often one of the most difficult issues.

Suppose:

A duty-free concession lasts 8 years.

At expiry, the incumbent argues:

“We invested €20 million and should receive another 8 years automatically.”

A competitor argues:

“The concession is valuable and should be competitively awarded.”

The legal analysis normally requires examination of:

1. original concession;
2. duration;
3. renewal clause;
4. applicable procurement/concession law;
5. nature of the airport;
6. scarcity of space;
7. modifications to the concession;
8. legitimate expectations;
9. competition;
10. transparency.

The principles developed in Promoimpresa are particularly relevant when an economically valuable concession is extended without a genuine competitive process.

11. Modification of an Existing Concession

A major litigation issue is whether a change is merely contractual administration or actually a substantial modification.

Examples:

• 5-year concession → 15-year concession;
• 500 m² → 2,000 m²;
• ordinary retail → exclusive duty-free operation;
• fixed rent → heavily subsidised rent;
• one terminal → all airport terminals.

A substantial modification can potentially require a new competitive procedure depending on the applicable legal framework.

12. COVID-19 and Airport Retail Concessions

Pandemic disputes may concern:

• airport closure;
• passenger collapse;
• minimum guaranteed rent;
• turnover rent;
• force majeure;
• frustration;
• hardship;
• renegotiation;
• temporary suspension;
• termination.

A retailer may argue:

“The airport was closed, so the minimum guaranteed payment should not apply.”

The airport may respond:

“The contract allocates commercial risk to the retailer.”

The answer depends heavily on the governing national law and the precise wording of the concession.

13. Force Majeure

Possible events include:

• pandemic;
• war;
• terrorist attack;
• airport closure;
• government restrictions;
• customs restrictions;
• security restrictions;
• major infrastructure failure;
• cyberattack.

A force-majeure clause should be analysed for:

1. definition;
2. foreseeability;
3. causation;
4. prevention;
5. mitigation;
6. notice;
7. duration;
8. suspension;
9. termination.

14. Minimum Annual Guarantee Disputes

Airport retail concessions often use a Minimum Annual Guarantee (MAG).

Example:

Retailer must pay the greater of €5 million or 20% of annual turnover.

If passenger traffic unexpectedly falls, the retailer may challenge the MAG.

Important questions include:

• Was passenger-volume risk allocated to the retailer?
• Does the contract contain a force-majeure clause?
• Is there a hardship provision?
• Is the MAG suspended during airport closure?
• Does government action trigger contractual relief?
• Was renegotiation required?

15. Property and Possession Issues

Airport retail litigation can also concern the legal character of the premises.

Questions include:

• Is the retailer a tenant?
• Is it merely a licensee?
• Is it a concessionaire?
• Does it have exclusive possession?
• Can the airport relocate the shop?
• Who owns fixtures?
• Who bears fit-out costs?
• What happens to improvements after termination?

The classification is important because ordinary landlord-and-tenant law may not apply in the same way as a public concession regime.

16. Duty-Free and Customs Issues

Duty-free operations introduce additional legal complexity.

Potential disputes include:

• customs compliance;
• passenger eligibility;
• storage;
• stock movement;
• excise duties;
• VAT;
• export documentation;
• inventory controls;
• liability for customs breaches.

A concession agreement may allocate some of these risks contractually, but mandatory customs and tax rules cannot simply be displaced by contract.

17. Consumer Protection

Airport retailers remain subject to applicable consumer-protection rules.

Possible claims include:

• misleading price representations;
• misleading “duty-free” claims;
• defective products;
• unfair commercial practices;
• inadequate information;
• refund disputes;
• warranty claims.

The airport operator and retailer should therefore be distinguished:

Retailer responsibility for the sale ≠ automatic airport-operator responsibility.

Liability depends on the contract, applicable legislation and the specific conduct.

18. Evidence in Airport Concession Litigation

Important evidence includes:

Contract documents

• concession agreement;
• tender documents;
• amendments;
• renewal agreements;
• side letters.

Financial evidence

• turnover;
• passenger numbers;
• MAG calculations;
• rent invoices;
• revenue reports;
• audited accounts.

Tender evidence

• evaluation matrix;
• bidder submissions;
• scoring sheets;
• correspondence;
• committee minutes.

Operational evidence

• terminal closure records;
• passenger statistics;
• shop-opening hours;
• airport capacity;
• security restrictions.

Competition evidence

• competing concession fees;
• comparable airports;
• market shares;
• exclusivity arrangements;
• alternative retail locations.

19. Remedies

Depending on the jurisdiction and legal basis, possible remedies may include:

Before award

• suspension of tender;
• interim injunction;
• exclusion of unlawful criteria;
• reopening of tender.

After award

• annulment;
• damages;
• ineffective-contract remedies;
• limitation of concession duration;
• corrective measures.

Contract disputes

• unpaid fees;
• damages;
• restitution;
• termination;
• specific performance;
• declaratory relief.

Competition cases

Potential remedies can include:

• cessation of discriminatory conduct;
• modification of contractual conditions;
• damages;
• fines by competition authorities.

State-aid cases

Possible consequences can include:

• recovery of unlawful aid;
• annulment of Commission decisions;
• compensation where the applicable requirements are satisfied.

20. Practical Legal Analysis

For an airport retail concession dispute, use this sequence:

Step 1 — Identify the parties

Airport authority, airport operator, concessionaire, competitor, public authority.

Step 2 — Identify the legal instrument

Is it:

• lease?
• licence?
• concession?
• public contract?
• commercial agreement?

Step 3 — Examine the award

Was there:

• tender?
• negotiation?
• direct award?
• renewal?

Step 4 — Check EU concession principles

Consider:

• transparency;
• equal treatment;
• proportionality;
• non-discrimination.

Step 5 — Check competition law

Consider:

• dominance;
• exclusivity;
• discrimination;
• foreclosure;
• access to airport facilities.

Step 6 — Check State aid

Where public resources or a public airport are involved, ask whether the concession gives an economic advantage under Article 107 TFEU.

Step 7 — Examine contractual risk

Check:

• MAG;
• turnover rent;
• force majeure;
• termination;
• renewal;
• hardship;
• insurance.

Step 8 — Determine remedy

The remedy differs substantially between:

• procurement challenge;
• concession-contract dispute;
• competition claim;
• State-aid challenge.

21. Case-Law Summary Table

The airport-specific authorities demonstrate that airport operators can operate in an economic environment subject to EU competition and State-aid rules, while the broader concession cases supply the principles governing transparency, equal treatment, competitive award and concession renewal.

22. Simple Exam Formula

Remember:

Airport Retail Concession = Concession Award + Contract + Airport Property + Competition + State Aid + Consumer/Customs Rules

And for litigation:

Tender → Award → Concession → Operation → Fees → Renewal/Termination → Competition → Remedies

Most important principles

1. Airport retail space can be an economically valuable and scarce resource.
2. Airport operators may be subject to EU competition law when acting economically.
3. Major concessions may require transparent and non-discriminatory allocation.
4. Automatic renewal can be legally problematic where EU concession principles apply.
5. Tender criteria must respect proportionality and equal treatment.
6. Publicly favourable airport arrangements can raise State-aid questions.
7. A concession agreement does not eliminate mandatory EU or national law.
8. Contractual liability and competition-law liability are separate.
9. A competitor's procedural standing must be established separately from the substantive merits.
10. The precise legal result depends heavily on whether the airport is publicly controlled, whether the arrangement is a concession or ordinary commercial contract, and the applicable national law.

Important qualification: the cases above should not be treated as six cases all directly deciding duty-free-shop disputes. Aéroports de Paris is directly airport/competition-related; Volotea, Deutsche Lufthansa, Ryanair/AMS and Transavia concern airport-related State-aid questions; Telaustria, Promoimpresa and Borta are broader European concession/procurement authorities applied by analogy to airport retail concessions.