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Transport (air)

Anticompetitive practices

The Australian Competition and Consumer Authority proposes to grant authorisation to owner drivers to collectively bargain with major supplier of chain logistics (Toll / Transport Workers’ Union of Australia)
Australian Competition and Consumer Commission
ACCC proposes to grant authorisation to owner drivers to collectively bargain with Toll* The Australian Competition and Consumer Commission has issued a draft determination proposing to grant authorisation to owner driver members of the Transport Workers’ Union in Queensland to engage in (...)

The ACCC Commissioner emphasizes that airline alliances and code-sharing may promote efficient and competitive markets, but they also raise competition concerns
Australian Competition and Consumer Commission
Competition issues at the forefront in aviation* Competition issues have featured prominently in the rapidly changing aviation sector, ACCC Commissioner Dr Jill Walker said today at the Swinburne Aviation Industry Conference in Melbourne. “The competitive landscape in the airline market has (...)

The Australian Competition and Consumer Authority lodges a cross-appeal in relation to a judgment of the Federal Court ordering penalties for attempt to enter into anti-competitive arrangements with three international airlines (Flight Centre)
Australian Competition and Consumer Commission
ACCC cross-appeals penalty judgment against Flight Centre* The Australian Competition and Consumer Commission has on 8 May 2014 lodged a cross-appeal in relation to a penalty judgment of the Federal Court on 28 March 2014 ordering Flight Centre Limited (Flight Centre) to pay penalties (...)

A New Zealand High Court orders a Swiss air freight company to pay a penalty and costs for cartel behaviour (Kuehne + Nagel International)
New Zealand Commerce Commission
Press releases published on New Zealand Commerce Commission Air freight cartel nets almost $12 million in penalties* The High Court in Auckland has today ordered Swiss company Kuehne + Nagel International AG to pay a penalty of $3.1 million plus costs for breaches of the Commerce Act. Kuehne (...)

The Australian Federal Court imposes fines for repeatedly attempting to enter into anti-competitive arrangements with three international airlines (Flight Centre)
Australian Competition and Consumer Commission
$11 million penalties imposed on Flight Centre* The Federal Court has today made declarations and ordered that Flight Centre pay penalties totalling $11 million for repeatedly attempting to enter into anti-competitive arrangements with three international airlines to eliminate differences in (...)

The Spanish Competition Authority fines airport incumbent and eleven car rental companies over €3.1 M for exchanging sensitive commercial information (Servicios comerciales AENA)
European Commission - DG COMP
On 2 January 2014 the recently created National Markets and Competition Commission (“CNMC”) imposed a fine of over €3.1 million on AENA, AENA Aeropuertos and eleven car rental companies for colluding over certain car rental contractual conditions as well as exchanging sensitive commercial (...)

The Australian Federal Court finds that a travel agent attempted to induce certain airlines to make collusive arrangements with it in relation to retail air fares for international air travel (Flight Centre)
Australian Competition and Consumer Commission
Federal Court finds that Flight Centre attempted to enter into illegal arrangements with airlines* The Federal Court has held that on 6 occasions Flight Centre attempted to enter into arrangements with airlines which sought to eliminate differences in air fares so as to fix, control or (...)

The Brazilian CADE fines air cargo carriers for price fixing highlighting the importance of leniency program in the fight against cartels (Absa Aerolineas Brasileiras)
Brasilian Administrative Council for Economic Defense (CADE) (Brasilia)
Introduction CADE’s Tribunal condemned airlines ABSA Aerolineas Brasileiras S.A., Varig Logistica SA, American Airlines Inc., and Alitalia Linee Aeree Italiane S.P.A., plus seven individuals, for cartel formation in the international air cargo sector. The fines sum approximately 300 million (...)

A New Zealand High Court approves settlement in a long-running air cargo cartel case (Air New Zealand)
New Zealand Commerce Commission
Press releases published on New Zealand Commerce Commission Air New Zealand final airline to settle with Commerce Commission in air cargo case* The High Court has approved a settlement under which Air New Zealand will pay a $7.5 million penalty for price-fixing in breach of the Commerce Act. (...)

The German Competition Authority declares legally binding commitments offered by airline company regarding specific issues with its data tracking methods (Lufthansa)
European Commission
Germany: Lufthansa changes anticompetitive Clauses in Corporate Client Programme* On 20 December 2012 the Bundeskartellamt (BKartA) declared commitments of Lufthansa binding regarding specific issues with Lufthansa’s data tracking methods. The proceedings against Lufthansa were triggered by (...)

The German Federal Cartel Office accepts commitments offered by German airline concerning its contracts with business clients and the collection of sensitive client information which might be anti-competitive (Lufthansa)
King’s College (London)
The commitments decision concerns the Federal Cartel Office’s (FCO) proceedings against Lufthansa‘s contracts with business clients and the collection of sensitive client information which might be anti-competitive. Background The FCO commenced proceedings against Lufthansa in September 2009, (...)

The UK Competition Authority closes its investigation into alleged price-fixing between two airlines contrary to Chapter I of the Competition Act 1998 and Article 101(1)TFEU due to inconsistent evidence (Cathay Pacific Airways and Virgin Atlantic)
University of Southampton
The UK Office of Fair Trading investigated, under Chapter I of the Competition Act 1988, whether employees of Virgin Atlantic and Cathay Pacific Airways had exchanged commercially sensitive information in order to coordinate prices in relation to passenger services on the London to Hong Kong (...)

The Swiss Competition Commission joins the US DOJ, the EU Commission and other antitrust authorities in imposing fines to domestic and foreign freight forwarders (Kuehne + Nagel International, Panalpina Welttransport, Agility Logistics International, Deutsche Bahn, Deutsche Post, Spedlogswiss)
Bourgeois Avocats
Introduction After a five and a half years long investigation, the Swiss Competition Commission (COMCO) eventually joined US and EU antitrust authorities in sanctioning price fixing agreements related to a variety of fees charged to clients purchasing international freight forwarding services (...)

A US District Court allows a plea of nolo contendere, while retaining full discretion at sentencing to impose any penalty and fine against a price-fixing conspiracy engaged by an air cargo carrier (Florida West)
King & Wood Mallesons (Sydney)
This article was originally published on In Competition by King & Wood Mallesons (click here). US District Court blows full time on cartel proceedings against Florida West* The District Court has made the rare decision to accept a plea of no contest from airline Florida West, ending the (...)

The UK OFT fines leading airlines for anti-competitive practices in relation to the pricing of passenger fuel surcharges (British Airways / Virgin Atlantic Airways)
European Commission
United Kingdom: British Airways to pay £ 58 500 000 (approximately € 71 515 000) Penalty in OFT Fuel Surcharge Decision* On 19 April 2012, the Office of Fair Trading announced its decision that British Airways (BA) and Virgin Atlantic Airways (VAA) engaged in anti-competitive practices in (...)

The Australian Federal Court in Sydney imposes fines on airline company for price fixing as part of a cartel (Korean Air Lines)
Australian Competition and Consumer Commission
Korean Air Lines penalised $5.5 million for price fixing cartel* The Federal Court in Sydney has penalised Korean Air Lines Co Ltd $5.5 million for price fixing as part of a cartel. The Australian Competition and Consumer Commission has pursued a number of international airlines for cartel (...)

The UK OFT issues a statement of objections confirming the immunity for a company in the airline fuel surcharges cartel case (Virgin)
University of East Anglia - CCP (Norwich)
Article published on Centre for Competition Policy blog. If Virgin Gets to Keep Its Immunity, Who is Responsible for the Collapse of the BA Trial?* This week the Office of Fair Trading announced that Virgin Atlantic would keep its immunity in the Passenger Fuel Surcharges cartel case. This (...)

The Turkish Competition Authority applies leniency by granting total immunity and a significant reduction in the amount of fine in a case dealing with anticompetitive cooperation agreements in the air transport sector (SunExpress/Condor)
University of Sussex
This study analyses the decision of the Turkish Competition Authority (TCA) in which it has granted total immunity to SunExpress and reduced the amount of fine of Condor by 50 percent, after SunExpress applied for leniency and disclosed the existence of the agreements it signed with Condor (...)

A US District Court fines a Japanese company $3.3 M for its conspiracy to restrain trade on US freight forwarding market (Vantec Corporation)
Simmons & Simmons (London)
Background & Proceedings In 2011, the US District Court for the District of Columbia found that Vantec Corporation had violated Section One of the Sherman Act, i.e. conspiracy to restrain trade (15 U.S.C § 1). Vantec Corporation is a Japanese company, with its main business activities (...)

The EU General Court partly annuls Commission’s State aid decision regarding an express transportation company hub in a German airport (DHL)
Van Bael & Bellis (Brussels)
In a judgment of 24 March 2011, the General Court was again called upon to rule on the validity of a decision adopted by the European Commission on 23 July 2008 with regard to an agreement concluded between DHL, FLH (the company operating Leipzig-Halle Airport) and MF (a company holding 94% of (...)

The European Commission fines 11 air cargo carriers more than € 799 M for price-fixing cartel (Airfreight cartel)
Van Bael & Bellis (Brussels)
On 9 November 2010, the Commission announced its decision to fine eleven air cargo carriers a total of € 799,445,000 for their involvement in a worldwide price-fixing cartel in the airfreight services sector. Air cargo carriers provide their services to freight forwarders, who arrange the (...)

The European Commission consults on remedies in the airline sector (Iberia, British Airways, American Airways)
Van Bael & Bellis (Brussels)
On 10 March 2010, the European Commission opened a consultation on remedies offered by British Airways (“BA”), American Airlines (“AA”) and Iberia in the context of its review of the airlines’ envisaged cooperation relating to transatlantic flights under Article 101 TFEU. The three airlines have (...)

The European Commission investigates the remedies proposed by airlines in the context of envisaged cooperation relating to transatlantic flights (British Airways, American Airlines, Iberia)
Van Bael & Bellis (Brussels)
The European Commission has recently confirmed that it is investigating the sufficiency of remedies proposed by British Airways, American Airlines and Iberia in the context of its review of the compatibility of the airlines’ envisaged cooperation relating to transatlantic flights with Article (...)

A US Court rules that the FTAIA mandated dismissal of a putative class action brought against foreign airlines in a civil litigation concerning the allegation of price fixing (Lufthansa / Air France / KLM / Alitalia)
Sheppard Mullin (San Francisco)
U.S. Court Grounds Europe-Japan Air Travel Price-Fixing Case* On October 16, 2009, Judge Louis H. Pollak of the United States District Court for the Eastern District of Pennsylvania ruled that the Foreign Trade Antitrust Improvements Act of 1982, 15 U.S.C. § 6a ("FTAIA") mandated dismissal of a (...)

The English High Court denies representative action statute for antitrust price-fixing claims in the air freight services market (Emerald/British Airways)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom
,
Dentons (Brussels)
On April 8, 2009, the English High Court of Justice, Chancery Division, granted British Airways’ request for an order striking two Plaintiffs’ representative claims. Though still subject to appeal, this decision potentially represents a significant obstacle to efforts underway to apply historical (...)

Dominance

The High Court of England rules on the relevance of commercial gain for establishing an abuse of dominance on the market for airport to city centre bus route (Arriva The Shires / London Luton Airport Operations)
Blackstone Chambers
Abuse of dominance: no commercial gain, no abuse?* Is it necessary for there to be some commercial benefit to be gained by a dominant undertaking from its conduct before that conduct can be condemned as abusive? No, says Mrs Justice Rose in Arriva the Shires Ltd v London Luton Airport (...)

The Italian Competition Authority opens an investigation against a company managing the airports of Milan for breach of Article 102 TFEU (SEA - Società per Azioni Esercizi Aeroportuali)
NCTM - Studio Legale Associato (Milan)
On 20 December 2013, the Italian Competition Authority (the “Authority”) opened an investigation against SEA for an alleged abuse of dominant position that aimed at preventing the entry of a potential competitor into the management of the infrastructures of the airport of Milan Linate. (...)

The Italian Competition Authority investigates into a foreclosing conduct of the manager of Milan airports in the general aviation sector (Cedicor/SEA)
Desogus Law Office (Cagliari)
Introduction By a decision made on 20 December 2013 the Italian Competition Authority (ICA) has opened an Article 102 investigation against the manager of the Milan airports, SEA (Case A474, Cedicor/SEA). SEA was alleged to have abused its dominant position by foreclosing the market for the (...)

The Competition Commission of India excludes "policy formulation" from the scope of Indian competition law (Vineet Kumar)
Cyril Amarchand Mangaldas (Mumbai)
The Competition Commission of India (“CCI”), on 6 August 2013 passed an order clarifying the scope of the applicability of the Competition Act, 2002 (“Act”), excluding enterprises engaged in “policy formulation”. The CCI was of the opinion that as “policy formulation” is not a commercial or economic (...)

An Italian civil court issues a judgement finding an abuse of dominant position by airline company, in violation of Article 102 TFEU, consisting in the refusal to grant to online travel agencies access to the information on its flight tickets (Ryanair)
Legance - Studio Legale Associato
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Legance - Studio Legale Associato
By judgement no. 7825/2013, the civil court of Milan (Tribunal of Milan) has assessed, from an antitrust perspective, the conducts carried out by Ryanair against Viaggiare S.r.l., an online travel agency (OTA) active in the sale of leisure and travel services, including the sales of Ryanair’s (...)

The Italian Court of Milan finds an abuse of dominant position in the market for online travel agencies (Viaggiare/Ryanair)
Ashurst (Milan)
Milan Court finds that Ryanair abused its dominant position in the market for online travel agencies* On June 4, 2013, the Milan Court’s company law section handed down a ruling (only available in Italian) holding that Ryanair abused its dominant position in the downstream market for online (...)

The Latvian Competition Authority fines an airport for abuse of dominant position (Ryanair, airBaltic)
European Commission
Latvia: Riga International Airport fined for Abuse of Dominant Position* On 10 February 2012, the Competition Council (CC) took a decision establishing that Riga International Airport (Airport) had abused its dominant position by charging to the Irish airline Ryanair substantially lower prices (...)

The Danish Competition Authority cannot intervene against refusal to grant access to Copenhagen airport, because the Danish Traffic Authority has determined that aviation legislation does not allow the establishment of a passenger terminal owned by a third party
Danish Competition and Consumer Authority (Copenhagen)
Aviation legislation prevents competition in Copenhagen Airport* Københavns Lufthavne A/S (CPH) limits competition when it refuses a new, competing terminal operator – Airport Terminal A ApS (TA) - access to Copenhagen airport. The Danish Competition Council can not intervene because the Danish (...)

The Danish Competition Authority decides not to adopt a formal decision in a case concerning a refusal to supply by the Copenhagen airport (Kobenhavns Lufthavne)
European Commission
Denmark: Aviation Legislation prevents Competition in Copenhagen Airport* The Danish Competition and Consumer Authority (DCCA) considers that Copenhagen Airport (CPH) limits competition when it refuses to give a new, competing terminal operator access to the airport. However the Danish (...)

The Turkish Competition Authority rejects the claims of predatory pricing and abuse of regulatory procedures in the market for domestic and international flights (Turkish Airlines/Pegasus)
University of Sussex
This study analyses the decision of the Turkish Competition Authority (TCA) in which it has rejected the claims that Turkish Airlines engaged in predatory pricing and abused regulatory procedures in the market for domestic and international flights with a view to driving one of its competitor, (...)

The Competition Authority of Bosnia & Herzegovina finds an abuse of dominant position on the market for computer reservations systems (Amadeus)
University of Technology (Tallinn)
On 22 December 2011 Competition Authority of Bosnia & Herzegovina (KV) established that Amadeus BH d.o.o., the provider of the computer reservations system Amadeus used by the travel agencies for booking the airline tickets, has abused its dominant position on the relevant market by (...)

The Danish Competition Council decides on a case concerning the application by Copenhagen airport of dissimilar conditions to equivalent transactions (CPH Go)
European Commission
Denmark: Terms of Use for Low Cost Facility at Copenhagen Airport found Discriminatory* On 21 December 2011, the Danish Competition Council decided on a case concerning the application by Copenhagen airport of dissimilar conditions to equivalent transactions. The case regards the Danish (...)

The English High Court finds London airport abused its dominant position in refusing competing car concierge services access to the arrivals forecourt (Heathrow Airport/Purple Parking and Meteor Parking)
DLA Piper
The English High Court has found that Heathrow abused its dominant position by refusing competing car concierge services access to the arrivals forecourts at Heathrow Airport. The case was brought by Purple Parking Limited (Purple) and Meteor Parking Limited(Meteor). Both Purple and Meteor (...)

The English High Court orders an airport to give non-discriminatory access to terminal forecourts to competing valet parking service providers (Heathrow Airport/Purple Parking and Meteor Parking)
Brick Court Chambers
On 15 April 2011, the High Court ruled against the Defendant, Heathrow Airport Limited, ordering it not to exclude the Claimants, Purple Parking Limited and Meteor Parking Limited, from accessing the forecourts of Heathrow Terminals 1 and 3 in operating “meet and greet” or valet parking services. (...)

The Dutch Trade and Industry Appeals Tribunal overturns a decision by the NCA not to investigate an excessive pricing complaint (KLM/SLM)
Liberty Global (Amsterdam)
The complaint The appeal relates to a complaint submitted by a society of travellers (Vereniging van Reizigers -“VVR”) to the Netherlands Competition Authority (“NMa”) on 16 April 2003. The complaint alleges that the airlines KLM and SLM are abusing their dominant position on the route Amsterdam - (...)

The Lithuanian Competition Council for the third time finds the State controlled airport guilty of abuse of a dominant position in operating airport facilities (Vilnius Airport / Baltic ground services)
Sorainen (Vilnius)
On 5 November 2009 the Lithuanian Competition Council (LCC) delivered its third infringement decision, in a two-year period, against the Vilnius international airport operator, State Enterprise Tarptautinis Vilniaus oro uostas for (TVOU), for the anti-competitive practice of tying the service (...)

The German Federal Court of Justice upholds refusal to supply case in the market for travel lodge cards (Lufthansa)
Van Bael & Bellis (Brussels)
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Practising Law Institute
According to a press release, the German Federal Court of Justice, in its decision dated 3 March 2009, upheld a decision of the Higher Regional Court of Düsseldorf, finding that Deutsche Lufthansa AG had abused its dominant position by refusing to supply the authorisations required to allow (...)

The Higher Regional Court of Düsseldorf rules on refusal to supply case in the market for travel lodge cards
Van Bael & Bellis (Brussels)
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Practising Law Institute
In its recently published decision dated 5 December 2007, the Higher Regional Court of Düsseldorf held that a leading undertaking in the travel services market had abused its dominant position by refusing to supply to a travel lodge card supplier authorisations to issue VAT information on the (...)

The French Competition Authority dismisses a complaint regarding an alleged abuse of dominant position on the market for passenger transport between Paris and London (Eurostar)
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. Paris-London: The Conseil de la concurrence considers that Eurostar did not adopt a predatory behaviour aimed at eliminating competition.* Following a complaint filed by British Airways on 18 November 2004, (...)

The German Higher Regional Court of Düsseldorf upholds prohibition imposed by the Bundeskartellamt on an airline company for unfair pricing strategy adopted against competitor (Deutsche Lufthansa)
German Competition Authority (Bonn)
Higher Regional Court Düsseldorf provisionally confirms the prohibition of Lufthansa’s abusive pricing strategy* In a provisional decision the Higher Regional Court Düsseldorf has largely confirmed the Bundeskartellamt’s decision prohibiting Deutsche Lufthansa AG from unfairly hindering its (...)

The German Competition Authority prohibits a domestic airline company to adopt a low pricing strategy designed to squeeze a new competitor out of the market (Deutsche Lufthansa)
German Competition Authority (Bonn)
Bundeskartellamt prohibits Lufthansa from hindering its rival Germania* The Bundeskartellamt sees the pricing strategy of Deutsche Lufthansa AG (DLH) as an attempt to squeeze its new competitor, Germania Fluggesellschaft mbH, Berlin (Germania) out of the market and fears that emerging (...)

Mergers

The German Competition Authority clears a merger between component suppliers for the aerospace industry (Precision Castparts / Permaswage)
German Competition Authority (Bonn)
Merger of component suppliers to the aerospace industry cleared after intensive examination* Bonn, 24. October 2013: The Bundeskartellamt has cleared the acquisition of Permaswage Holding SAS registered in Les Clayes-sous-Bois, France, by Precision Castparts Corporation, Portland, USA, in (...)

The UK Competition Commission requires airline to sell most of its minority shareholding in rival (Ryanair/Aer Lingus)
Jones Day (London)
Last week the UK Competition Commission (CC) required airline Ryanair to reduce its 29.8% shareholding in rival Aer Lingus to 5 per cent. The CC ruled that Ryanair’s gradual acquisition of its existing minority shareholding (i) created a relevant merger situation and (ii) had led or may be (...)

The UK Competition Commission requires airline to sell down its minority shareholding in its rival (Ryanair/Aer Lingus)
Dechert (Brussels)
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Fangda Partners (Hong Kong)
1. Introduction This case note provides a summary of the UK competition authorities’ investigation into Ryanair’s 29.82% minority shareholding in its rival Aer Lingus. The long running battle between the two airlines has resulted in more than 20 competition authority and court decisions since (...)

The U.S. DoJ challenges an acquisition in the air transport sector (US Airways / American Airlines)
Wilson Sonsini Goodrich & Rosati (Washington)
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Wilson Sonsini Goodrich & Rosati (Washington)
On August 13, 2013 the U.S. Department of Justice (DOJ), six states, and the District of Columbia filed suit against US Airways Group, Inc. (US Airways) and AMR Corporation (American) alleging that the defendants’ proposed merger violates Section 7 of the Clayton Act. This marks the first time (...)

The European Commission conditionally clears merger between two US commercial airlines while the US DOJ sues to block deal (US Airways / American Airlines)
Van Bael & Bellis (Brussels)
On 5 August 2013, the European Commission conditionally approved the proposed merger between US Airways Group and AMR Corporation, the parent company of American Airlines. Both US Airways and American Airlines are major US commercial airlines. The Commission examined the competitive (...)

The Italian Competition Authority clears a vertical merger between the manager of the airports of Rome and the suppliers of travel retail and catering services (Atlantia-Gemina)
Desogus Law Office (Cagliari)
The Italian Competition Authority (ICA) has recently reviewed the merger between the Gemina group that owns ADR, the manager of the Rome’s airports of Fiumicino and Ciampino and Atlantia owned by the Edizione group whose subsidiaries WDFG and Autogrill are active in the airport retail sector. (...)

The Competition Commission of Singapore approves proposed alliance between two airlines subject to commitments (Emirates/Qantas Airways)
BHP Billiton (Singapore)
On 28 March 2013, the Competition Commission of Singapore (the “CCS”) issued its Notice of Decision to approve the proposed alliance between Emirates and Qantas Airways Limited (the “Parties”) (the “Proposed Alliance”), subject to voluntary undertakings. In order to alleviate the competition concerns (...)

The UK Competition Commission reopens investigation into Ryanair’s minority stake in Aer Lingus (Ryanair / Aer Lingus)
Van Bael & Bellis (Brussels)
On 28 February 2013 (one day after the European Commission blocked Ryanair’s third attempt to acquire Aer Lingus), the UK Competition Commission (“CC”) announced that it will reopen a long-running inquiry into Ryanair’s acquisition of a minority stake in Aer Lingus. This investigation has (...)

The English Court of Appeal rejects low cost airline’s appeal of UK Competition Commission probe (Ryanair / Aer Lingus)
Van Bael & Bellis (Brussels)
On 13 December 2012, the English Court of Appeal (CA) rejected Ryanair’s appeal against a Competition Appeal Tribunal (CAT) judgment allowing the Competition Commission (CC) to review Ryanair’s acquisition of a minority stake in rival airline company Aer Lingus. In August 2012, the CAT (...)

The England and Wales High Court rules that there was no contingent infringement of article 21 of the ECMR when the UK Competition Commission investigates an acquisition of a minority stake prior to a merger subject to the exclusive control of the European Commission (Ryanair / CC)
Blackstone Chambers
Anyone for another round? The Court of Appeal’s nuanced approach to the duty of “sincere cooperation”.* The duty of “sincere cooperation” set out in Article 4(3) TEU requires Member States to take appropriate measures to “ensure fulfilment of the obligations arising out of the Treaties or resulting (...)

The Canadian Competition Bureau and airline companies reach agreement on controversial transborder joint venture (Air Canada, United Continental)
Canadian International Joint Commission
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Canadian International Joint Commission
Introduction On 23 October 2012 Canada’s Competition Bureau (the Bureau), an independent law enforcement agency that assists the Commissioner of Competition (the Commissioner) in the administration and enforcement of the Competition Act, reached a consent agreement with Air Canada and United (...)

The Belgian Competition Council conditionally clears acquisition of a provider of ground handling services by a rival (Flightcare / Swissport Handling)
Van Bael & Bellis (Brussels)
On 31 August 2012, the Belgian Competition Council conditionally cleared the acquisition of Flightcare by Swissport Handling. The parties are rival providers of ground handling services at Brussels airport. Flightcare is one of two companies licensed by the Brussels Airport Company to (...)

The UK CAT rules on Competition Commission’s decision to continue investigation on a merger in the aviation sector (Ryanair/Aer Lingus)
Herbert Smith Freehills (Brussels)
The acquisition of Ryanair’s minority stake in Aer Lingus is currently under investigation by the Competition Commission (CC) under the merger control regime of the Enterprise Act 2002, despite a series of jurisdictional challenges and a potentially conflicting transaction (a renewed bid by (...)

The UK Competition Commission investigates the acquisition of Irish low cost airline’s minority stake in former Irish flag carrier (Ryanair/Aer Lingus)
Herbert Smith Freehills (Brussels)
The acquisition of Ryanair’s minority stake in Aer Lingus is currently under investigation by the Competition Commission (CC) under the merger control regime of the Enterprise Act 2002, despite a series of jurisdictional challenges and a potentially conflicting transaction (a renewed bid by (...)

The EU Commission conditionally approves acquisition of an aviation equipment company (Goodrich / United Technologies)
Van Bael & Bellis (Brussels)
On 26 July 2012, following a Phase II investigation, the European Commission granted conditional approval to the acquisition of Goodrich Corporation by United Technologies Corporation (UTC), both US-based companies active in the production and sale of aviation equipment on a worldwide (...)

The UK Court of Appeal addresses the issue of the duty of sincere cooperation between national competition authorities and the European institutions in the context of merger control (Ryanair/Aer Lingus)
UK Competition and Markets Authority (CMA) (London)
Summary In 2012 the low-cost company Ryanair flew twice to the Court of Appeal in the UK, in an attempt to further explore the duty of sincere cooperation between national competition authorities and the European institutions. Ryanair did not get good value for money: at both occasions it was (...)

The Italian Competition Authority reviews a merger in the airline sector and imposes the elimination of the monopoly position on the Milan Linate-Rome route (Alitalia / Air One)
Desogus Law Office (Cagliari)
Introduction On the basis of Law Decree 134/2008 the Italian Competition Authority (ICA) conditionally cleared the Alitalia/Air One merger by imposing a set of behavioral remedies to prevent the imposition of excessive prices. It also set the a three-year deadline for the review of the (...)

The UK Competition Commission gives a provisional clearance to the anticipated joint venture between in-flight catering services companies (Alpha Flight / LSG Lufthansa Service)
Herbert Smith Freehills (Brussels)
Introduction On 10 October 2011, the UK Office of Fair Trading (the «OFT«) referred the anticipated 50/50 joint venture between in-flight catering services companies Alpha Flight Group Limited («Alpha«) and LSG Lufthansa Service Holding AG («LSG«) to the Competition Commission (the «CC«), for an (...)

The Brazilian Competition Authority imposes conditions on merger to create the largest airline in Latin America (TAM and LAN Airlines/Latam Airlines Group)
Itaú BBA (Sao Paulo)
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Azevedo Sette Advogados (Belo Horizonte)
The Administrative Council of Economic Defence (Conselho Administrativo de Defesa Econômica– CADE), Brazil’s antitrust authority, by unanimous decision, has authorised the merger between airline companies TAM, from Brazil, and LAN, from Chile, which created the largest airline company in Latin (...)

The Italian Competition Authority opens an investigation to assess whether the dominant positions held by a leading airline at the moment of a 2008 merger operation on certain national routes still exist and, if so, how they should be eliminated (Alitalia/CAI bis)
Bonelli Erede (Rome)
After three years since the approval of the merger operation through which Compagnia Aerea Italiana (CAI) acquired the operating assets of Alitalia Linee Aeree Italiane S.p.A.(Alitalia)as well as AirOne - Alitalia‘s main national competitor - the Italian Competition Authority (the “ICA”) opened (...)

The UK Court of Appeal stays the OFT’s investigation of minority interest between two airlines companies, while the EU Commission reviews the economic importance of minority shareholdings (Ryanair/Aer Lingus)
As the European Commission reported its intention to review the economic importance of minority shareholdings in early November this year, the case of Ryanair and Aer Lingus continued its rollercoaster ride of competition authority and court decisions relating to Ryanair’s 29.8% minority (...)

The UK OFT refers the anticipated joint venture between two in-flight caterers to the Competition Commission for in-depth investigation (Alpha Flight Group / Lufthansa Service)
Herbert Smith Freehills (Brussels)
Introduction On 10 October 2011, the UK Office of Fair Trading (the "OFT") referred the anticipated 50/50 joint venture between in-flight catering services companies Alpha Flight Group Limited ("Alpha") and LSG Lufthansa Service Holding AG ("LSG") to the Competition Commission (the "CC"), for (...)

The UK Competition Appeal Tribunal confirms that the OFT is not time-barred from investigating the acquisition of a competitor’s minority shareholding implemented five years previously under UK merger control rules (Ryanair v. OFT supported by Aer Lingus)
University of Southampton
On 28 July 2011, the UK Competition Appeal Tribunal (CAT) found that the Office of Fair Trading (OFT) is not out of time to consider referring the acquisition of a minority shareholding by Ryanair Holdings plc (Ryanair) in its competitor, Aer Lingus Group plc (Aer Lingus), to the Competition (...)

The UK’s Competition Appeal Tribunal upholds the OFT’s jurisdiction to review the acquisition of a minority shareholding in a merger in the airline sector (Ryanair/Aer Lingus)
Vinge (Stockholm)
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White & Case
I. Introduction On 28 July 2011 the Competition Appeal Tribunal (“CAT”) handed down a unanimous judgment, upholding the UK Office of Fair Trading’s (“OFT”) jurisdiction to review Ryanair‘s 29.8% minority shareholding in rival Irish airline Aer Lingus, which the former acquired almost five years ago. (...)

The UK Competition Appeal Tribunal upholds the OFT’s decision that it is "in time" to investigate the acquisition of a minority shareholding in a merger case concerning the air transport sector (Ryanair/Aer Lingus)
Herbert Smith Freehills (Brussels)
All views expressed are strictly personal views of the author. The present case note does not constitute legal advice and should not be relied on as such. The author would like to thank Natalia Sivakumaran, associate at Herbert Smith LLP in London, for her assistance with the preparation of (...)

The Canadian Competition Bureau challenges proposed airline joint venture (Air Canada and United Continental)
Canadian International Joint Commission
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Canadian International Joint Commission
Gavin Murphy, barrister and solicitor, Ottawa, Canada. The author serves on the editorial advisory boards of the Commonwealth Law Bulletin and the Journal of Parliamentary and Political Law. Shane Zurbrigg is a second year law student at the University of Ottawa. The views expressed in this (...)

The EU Commission prohibits the proposed merger between two Greek airlines companies as it would have resulted in a quasi-monopoly on the Greek air transport market (Aegean Airlines / Olympic Air)
Merger: main developments between 1 January and 30 April 2011* The European Commission has prohibited on 26 January the proposed merger between Aegean Airlines and Olympic Air, as it would have resulted in a quasi-monopoly on the Greek air transport market. This would have led to higher fares (...)

The UK Competition Appeal Tribunal receives a claim of jurisdiction from a leading low-cost airline (Ryanair)
Van Bael & Bellis (Brussels)
Irish air carrier Ryanair has recently launched an appeal before the UK Competition Appeal Tribunal (CAT) against a decision of the Office of Fair Trading (OFT) finding that the OFT has jurisdiction under UK merger control law to review Ryanair’s acquisition of a minority stake in competing (...)

The US DoJ approves a merger upon the leasing of 18 round-trip flight to a competitor in the airline industry (United / Continental)
Akin Gump Strauss Hauer & Feld (Dallas)
The DOJ cleared the merger between United and Continental Airlines, pursuant to their agreement to lease routes for 18 round-trip flights to and from Newark Liberty International Airport to Southwest Airlines. As a surprise to many, the DOJ’s analysis determined that the flight routes and (...)

The Portuguese Competition Authority prohibits acquisition of ground handling services provider by an airline (TAP)
Van Bael & Bellis (Brussels)
According to a press release of 20 November 2009, the Portuguese Competition Authority has prohibited the acquisition by Portuguese airline TAP of Serviços Portugueses de Handling, a ground handling services provider. The Competition Authority held that Serviços Portugueses de Handling already (...)

The Competition Commissioner directs staff to conditionally clear an airline deal (Lufthansa/Austrian Airlines)
Van Bael & Bellis (Brussels)
On 31 July 2009, a press release was published on the European Commission’s website announcing that Competition Commissioner Neelie Kroes has “instructed her services to draft a conditional clearance decision” for the proposed acquisition of Austrian Airlines by Lufthansa. The draft decision will (...)

The European Commission opens second phase investigation into a proposed acquisition in the airline sector (KLM/Martinair)
Van Bael & Bellis (Brussels)
On 8 September 2008, the Commission opened an in-depth investigation into the planned acquisition by KLM of fellow Dutch-carrier Martinair. Both KLM and Martinair, whose shares are currently split evenly between KLM and sea and land transport company Maersk, are active in air transport of (...)

The German Competition Authority threatens to impose fines for refusal to give up on slots for essential fringe times (Lufthansa)
German Competition Authority (Bonn)
Lufthansa faces fine for refusing to give up appropriate slots to Germania* In its clearance of the Lufthansa/Eurowings merger in September 2001 the Bundeskartellamt ordered Lufthansa to, among others, provide upon request and on all German domestic air routes where a new competitor intends to (...)

The German Competition Authority approves conditionally a merger on the market for air traffic (Lufthansa / Eurowings)
German Competition Authority (Bonn)
Lufthansa/Eurowings cleared subject to obligations* The Bundeskartellamt has cleared the merger of Lufthansa and Eurowings. The President of the Bundeskartellamt, Dr Böge, stated: „As a consequence of the decision, conditions and obligations will take effect which prevent a further consolidation (...)

The German Competition Authority informs the companies of its intention to prohibit the merger project that would lead to a strengthening of a dominant position on the domestic flight market (Lufthansa / Eurowings)
German Competition Authority (Bonn)
Bundeskartellamt criticises Lufthansa-Eurowings merger* Examinations undertaken so far show that Lufthansa’s acquisition of shares in Eurowings would lead to a strengthening of its dominant position on the domestic flight market in Germany. The possible positive effects on competition in the (...)

State Aids

The EU Commission issues new guidelines on airports and airlines bringing about improvements, but also adopting a too permissive approach in certain aspects
College of Europe (Bruges)
Article published on Lexxion State Aid Blog The New Guidelines on State Aid to Airports and Airlines: Problematic Issues (part 2)* Last week I reviewed the main provisions of the new Guidelines on State Aid to Airports and Airlines. This week I focus on three issues which are either not well (...)

The EU Court of Justice rules on the matter of non-notified state aid subject to a formal examination procedure initiated by the Commission and the measures to be adopted by the national courts hearing an application for cessation or recovery (Deutsche Lufthansa / Flughafen Frankfurt-Hahn)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Non-notified State Aid and the Role of National Courts [C 284/12, Deutsche Lufthansa v Flughafen Frankfurt-Hahn]* Introduction What prevents a Member State from granting State aid without first notifying it to the European Commission? Cynics would (...)

The European Commission opens public consultation on new state aid rules in the aviation industry
Van Bael & Bellis (Brussels)
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Abbie (Wavre)
The European Commission has opened a consultation into the EU state aid rules in the aviation section. Due to a heavily changed market environment over the last decade, the European Commission considers it necessary to review the rules on public financing of airports and start-up aid to (...)

The EU Commission decides that the privatisation process of an airport in Portugal does not constitute state aid (ANA)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog. Privatisation of Aeroportos de Portugal: Conflict between the National Economic Adjustment Programme and State Aid Rules?* Background Portugal notified to the Commission the privatisation of the “Aeroportos de Portugal” [ANA] for reasons of legal (...)

The EU Court of Justice dimisses the appeal of the Commission in relation to the failure to act as regards a state aid measure allegedly granted to Italian airlines (Ryanair)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Exceptional Circumstances, Natural Disasters, Commercial Risk and Rights of Complainants* Rights of Complainants Concerning Unlawful Aid: Case C-615/11 P, European Commission v Ryanair, 16 May 2013 The European Commission appealed against the (...)

The EU Court of Justice upholds that the construction of a new runway being inherently related with an economic activity falls outside the scope of exercise of state authority (Leipzig Halle)
European Court of Justice (Luxembourg)
The Leipzig-Halle judgment of the CJEU: is the financing of a transport infrastructure an economic activity subject to State aid rules?* Leipzig-HalleThe financing and construction of transport infrastructure has often been considered in the past to fall outside the ambit of State aid rules, (...)

The EU Commission finds that Germany has demonstrated that the proposed tax reduction for passengers constitutes compatible state aid (German Flights Tax Reduction)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Taxes and Tax Reductions on Air Travel: Selectivity and Compatibility* This posting examines an Irish and a German measure concerning reduction in passenger taxes. As to be expected, an important issue for both measures was whether the reduction was (...)

The EU Commission decides that the sale of a state owned airlines company does not amount to state aid (LOT Polish Airlines)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Sale of State-owned Airlines* Introduction In the previous posting I examined the funding of a regional airport. In this posting I look at a case concerning an airline; more specifically, the sale of three subsidiaries of Polish airline LOT. (...)

The EU Commission finds that the lower rate of the air travel tax for flights to a destination located no more than 300 km from Dublin airport constitutes illegal state aid (Irish air travel tax rates)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Taxes and Tax Reductions on Air Travel: Selectivity and Compatibility* This posting examines an Irish and a German measure concerning reduction in passenger taxes. As to be expected, an important issue for both measures was whether the reduction was (...)

The EU General Court rules that the EU Commission failed its duty to act following a complaint by low cost airline against alleged State aid to Italian airlines (Ryanair)
Van Bael & Bellis (Brussels)
On 29 September 2011, the General Court handed down its judgment concerning complaints by Ryanair concerning alleged state aid to Italian airlines. The General Court found that the Commission had failed in its duty to act on the complaints. The case stems from letters sent by the low (...)

The Competition Commission of the West African Economic and Monetary Union finds that Togo infringes regional State aid law by taking actions that favor an undertaking to the detriment of its competitors doing business in the common market (Asky)
Max Planck Institute for Innovation and Competition (Munchen)
1 Introduction and background This contribution reports on a case related to State Aides decided by the Competition Commission of the West African Economic and Monetary Union (WAEMU). The decision, ASKY, raises issues at the cross-road of trade, regional integration and competition law. WAEMU (...)

The European Commission authorises a plan by Germany to exempt selected groups of passengers to and from seven German islands from a newly‑created tax on air transport (Juist, Norderney)
University Luiss Guido Carli - GRIF (Rome)
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European Commission - DG COMP
"State aid: main developments between 1 May and 31  August 2011"* On 29 June 2011, the Commission authorised a plan by Germany to exempt selected groups of passengers to and from seven German islands (Juist, Norderney, Helgoland, Baltrum, Langeoog, Wangerooge, Borkum) from a newly‑created (...)

The European Commission decides to authorise air transport aid of a social character for certain residents in the French overseas department of Martinique
European Commission - DG COMP
,
European Commission - DG COMP
State aid: main developments between 1 January and 30 April 2011* The Commission decided on 18 February to authorise air transport aid of a social character for certain residents in the French overseas department of Martinique. The aid will increase the aid applicable to air transport between (...)

The European Commission approves a short term € 52 M State loan granted by the Maltese authorities to national airline company (Air Malta)
European Commission - DG COMP
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Hogan Lovells (Madrid)
State Aid: Main developments between 1 September and 31 December 2010* On 15 November 2010 the Commission authorised a short term € 52 million State loan to tackle liquidity problems at Air Malta. The Maltese authorities had notified emergency support to prevent the collapse of Air Malta. If (...)

The EU General Court upholds Commission’s decision ordering recovery of state aid granted through warranties relating to the operation of a leading express transportation’s hub (DHL)
Van Bael & Bellis (Brussels)
On 7 October 2010, the General Court rejected DHL’s application for partial annulment of a decision adopted by the Commission on 23 July 2008 with regard to an agreement concluded between DHL and FLH, the company operating Leipzig-Halle Airport. Under the terms of that agreement, FLH was to (...)

The EU Commission decides that the single charge agreement concerning airport services did not involve state aid (Bratislava Airport / Ryanair)
College of Europe (Bruges)
Article published on Lexxion State Aid Blog Airport Operators and Budget Airlines* During the past 18 months or so, the European Commission has launched more than 20 investigations in the funding of regional airports and the arrangements that these airports have concluded with budget airlines (...)

The European Court of Justice imposes a two-fold penalty on Greece under an Article 228 EC procedure for non-recovery of illegal State aid granted to airline company (Olympic Airways)
Van Bael & Bellis (Brussels)
On 7 July 2009, the European Court of Justice (ECJ) imposed a two-fold penalty on Greece under an Article 228 EC procedure for non-recovery of illegal State aid granted to Olympic Airways. The case dates back to 2002 when the Commission found certain aid granted to Olympic Airways incompatible (...)

The EU Court of First Instance partly annuls Commission’s decision declaring State aid for air transport losses connected with the New York terrorist attacks incompatible with the common market (Olympiaki Aeroporia Ypiresies)
Van Bael & Bellis (Brussels)
On 25 June 2008, the Court of First Instance (hereinafter the “CFI”) annulled in part the Commission decision declaring certain aid granted to a Greek airline as compensation for losses resulting from the events of 11 September 2001 incompatible with the common market. The CFI held, in (...)

The European Court of Justice rules that Greece had failed to comply with a Commission State aid decision issued in 2005 by not taking necessary measures to recover illegal aid granted to airline company (Olympic Airways Services and Olympic Airlines)
Van Bael & Bellis (Brussels)
On 14 February 2008, the European Court of Justice (the ECJ) ruled that Greece had failed to comply with a Commission State aid decision issued in 2005 by not taking necessary measures to recover illegal aid granted to Olympic Airways Services and Olympic Airlines. The public financial (...)

Procedures

The ECJ AG Kokott establishes that an unobjectionable error of law may exonerate an undertaking from antitrust liability to pay fines (Schenker)
Mircea & Partners (Bucharest)
I. Introduction Should the competition authorities bring proceedings against subjectively innocent undertakings? The assumption made by the respondents in the present case was that their own conduct was lawful and this hypothesis of lawfulness could be strengthened by the fact that during a (...)

A NY District Court authorizes disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges (Air Cargo Shipping Services)
Jones Day (Washington)
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Jones Day (Cleveland)
The U.S. magistrate judge in the consolidated civil antitrust cases challenging alleged collusion in air cargo charges has authorized disclosure of portions of the grand jury testimony of two witnesses who had testified during the criminal investigation conducted earlier by the U.S. Department (...)

The European Court of Justice annuls a General Court judgment concerning access to documents (Sweden v MyTravel and Commission)
Van Bael & Bellis (Brussels)
In a judgment of 21 July 2011, the European Court of Justice annulled a judgment of the General Court, which upheld a decision by the European Commission refusing access to certain documents in the Airtours/First Choicecase file. In 1999, Airtours launched a bid to acquire First Choice, a (...)

The EU General Court dismisses a leading low cost airline’s action for annulment of decisions rejecting access to documents (Ryanair)
Van Bael & Bellis (Brussels)
On 10 December 2010, the General Court rejected a series of claims for annulment brought by Ryanair against implied decisions of the Commission refusing access to documents relating to State aids allegedly granted to Ryanair by several airports. Ryanair sought mainly access to the complaints (...)

A US Federal Court reinforces that the Twombly “facial plausibility” standard serves as strong basis for dismissal in a price-fixing class action (LaFlamme / Société Air France)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Washington)
On April 5, 2010, Judge Kiyo A. Matsumoto of the U.S. District Court for the Eastern District of New York issued a Memorandum and Order dismissing the plaintiffs’ putative antitrust class-action complaint against KLM Royal Dutch Airlines and others for failing to state a claim. The plaintiffs (...)

The European Court of First Instance rejects damages claim for losses suffered as a result of the annulment of the Commission’s decision to prohibit a merger (MyTravel)
Van Bael & Bellis (Brussels)
On 9 September 2008, the Court of First Instance ("CFI") dismissed in its entirety the damages action brought by MyTravel (formerly Airtours) for losses resulting from its inability to complete its bid for First Choice as a result of the Commission’s prohibition of the Airtours/First (...)

The UK Competition Commission recommends break-up of airports operator (BAA)
Van Bael & Bellis (Brussels)
On 20 August 2008, the UK Competition Commission issued its provisional findings regarding competition issues relating to the UK airports owned and operated by BAA (Heathrow, Gatwick, Stansted and Southampton in England and Edinburgh, Glasgow and Aberdeen in Scotland). The Competition (...)

The President of European Court of First Instance dismisses request for interim measures by a low-cost airline (Aer Lingus)
Van Bael & Bellis (Brussels)
In an order of 18 March 2008, the President of the European Court of First Instance (CFI) dismissed a request for interim measures brought by Aer Lingus in its appeal against a European Commission decision finding that it had no power to require Ryanair to divest its minority stake in Aer (...)

Regulations

The New Zealand Commerce Commission invites views on the revision of the input methodologies for the cost of capital that apply to electricity lines services, gas pipeline services and specified airport services
New Zealand Commerce Commission
Press releases published on New Zealand Commerce Commission Commission seeks views on cost of capital input methodologies* The Commerce Commission is now inviting views on whether it should consider reviewing or amending the input methodologies for the cost of capital that apply to (...)

The New Zealand Commerce Commission issues final report on the effectiveness of the information disclosure regulation in relation to international airport (Christchurch)
New Zealand Commerce Commission
Press releases published on New Zealand Commerce Commission Commission issues final report on Christchurch International Airport* The Commerce Commission has released its final report to the Ministers of Commerce and Transport on the effectiveness of the information disclosure regulation in (...)

The French Competition Authority issues an opinion on competition and regulation of airport activities
French Competition Authority (Paris)
Press Release published on the official website of the French Competition Authority. The Autorité de la concurrence recommends a strengthening of the open competition obligations and advocates the implementation of a more efficient regulation.* A request for an opinion had been submitted to (...)

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