European Union Competition Law Developments in the Aviation Sector: July to December 2019

Abstract

The second half of 2019 continues to highlight the rapidly-changing aviation sector, with a number of key developments. This article summarizes the main developments over the past six months and provides the reader with greater detail of each of these developments. The Competition and Markets Authority (the ‘CMA’) in the United Kingdom has launched an in-depth Phase 2 investigation into the proposed acquisition of Farelogix by Sabre, after rejecting the parties’ initial remedies. As part of the Phase 2 review, the CMA inquiry group has stated that it intends to review whether the CMA has jurisdiction to investigate the transaction. This type of jurisdictional assessment is not commonly undertaken during Phase 2 investigations. The Parties are accusing the CMA of merging the substantive assessment of whether the transaction would lead to a substantial lessening of competition, with the jurisdictional issue of whether the transaction is one which qualifies for review by the CMA. A number of the airline addressees of the European Commission’s (the ‘Commission’) air cargo cartel decision have argued their respective appeals against the re-adopted 2017 decision. This marks the latest development in the long-running saga, which started with the Commission carrying out a number of unannounced inspections in 2006 (so-called dawn raids) before reaching its first decision in 2010. Following a successful appeal of the 2010 decision, the Commission re-adopted its decision in 2017, which is the focus of the current appeals. The airlines have raised arguments based on, inter alia, lack of evidence, statute of limitation, equality of treatment, the role played by regulators outside of the European Economic Area (‘EEA’), etc. The recent collapse of the Thomas Cook Group has spurned a number of competitionrelated developments. The German competition regulator has cleared an acquisition by Signa of 106 branches as well as the online travel business of Thomas Cook. The German regulator similarly cleared a separate transaction by Anex Tour of the Bucher Reisen & Öger Tours business. The collapse also caused financial difficulties for Condor Airlines (part of the Thomas Cook Group), as it was forced to write off a number of claims against other group companies. This led Germany to grant temporary rescue aid of EUR 380m to the airline, which has subsequently been approved by the Commission. Aviation, airline, regulation, competition and anti-trust