The General Court of the European Union has rejected all the arguments put forward by the Polish airline LOT to challenge the decisions of the European Commission which authorised, at the end of 2017, the sale of assets of the defunct airline Air Berlin to the German airline Lufthansa (see EUROPE 11932/10) and British airline easyJet (see EUROPE 11924/31), in two judgments handed down on Wednesday 20 October (cases T-240/18 and T-296/18).
Central to this case is the way in which the European Commission has defined the relevant markets. For the first time in cases concerning air passenger transport services, the Commission did not define the relevant markets by city pairs, between a point of origin and a point of destination (‘the O & D markets’), in particular because Air Berlin had withdrawn from all O & D markets prior to and independently of the two contested mergers. The Commission considered it preferable to aggregate for the purpose of its analysis all O & D markets to/from each of the airports (Düsseldorf, Zurich, Hamburg, Munich, Stuttgart and Berlin-Tegel) with which these slots were associated.
The Commission has therefore defined the relevant markets as those for air passenger transport services to and from these airports.
The General Court validates the Commission’s approach. In its view, LOT did not provide any serious indication that the examination of the O & D markets that it identified could have made it possible to determine the existence of a significant impediment to effective competition that could not be revealed by the market definition adopted by the Commission.
Furthermore, the European Court considers that the analysis of the effects of the mergers in question on the markets for air passenger transport services to and from the airports concerned does not reveal any manifest error in the assessment by the Commission. In particular, it points to the low congestion rate at these airports or the limited effect of the contested mergers on the increase in the slot shares held by Lufthansa and easyJet.
The Court also dismisses the complaint that the Commission should have incorporated the public rescue aid which Air Berlin had received to maintain its activities while its assets were transferred, into the assets transferred to easyJet and Lufthansa in the context of the mergers in question.
See the judgments: https://bit.ly/3E1VrfR (Original version in French by Mathieu Bion)