Order 2011-6-15 

Served: June 14, 2011 

UNITED STAT ES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

Issued by the Department of Transportation 

on the 14th Day of June, 2011 

Joint Application of 

AIR CANADA, 

THE AUSTRIAN GROUP, 

BRITISH MIDLAND AIRWAYS LTD., 

CONTINENTAL AIRLINES, INC., 

DEUTSCHE LUFTHANSA AG, 

POLSKIE LINIE LOTNICZE LOT S.A., 

SCANDINAVIAN AIRLINES SYSTEM, 

SWISS INTERNATIONAL AIRLINES, LTD., 

TAP AIR PORTUGAL AND 

UNITED AIR LINES, INC. 

to Amend Order 2007-2-16 under 49 U.S.C. §§ 

31308 and 41309 so as to Approve and Confer 

Antitrust Immunity 

 

Docket DOT-OST-2008-0234 

ORDER REQUESTING ADDITIONAL INFORMATION 

SUMMARY 

By this Order, the Department requests additional information, from the above-captioned 

members of the Star Alliance, together referred to as the “Joint Applicants.” We find that the 

additional information is necessary to analyze the pending matter. With the satisfactory 

submission of the information requested, the evidence of record should be sufficient for us to 

establish a procedural schedule and act on this matter. 

BACKGROUND 

On April 21, 2011, the Joint Applicants submitted a joint motion1 asking the Department to 

recognize Brussels Airlines’ participation in the existing immunized alliance and joint venture. 

On April 29, the Department provided interim access to certain confidential documents and 

suspended the procedural schedule until we could determine that the record is substantially 

complete. 

 

1 See Joint Motion (April 21, 2011). 
2

DECISION 

We have decided to seek additional evidence from the Joint Applicants. While the Joint 

Applicants submitted some relevant information to support their claims at the time they filed 

their motion, we think more evidence is required to ensure that the record is substantially 

complete pursuant to the Department’s regulations. 

We are therefore requiring the Joint Applicants to submit some limited documents and answers 

to written questions to clarify relevant issues. Without the additional information requested, the 

Department will not have sufficiently detailed evidence to make an informed decision on issues 

raised by the Joint Motion. 

Accordingly, we hereby require the Star carriers to submit documents and answer clarification 

questions, as set forth in the attachment. The additional evidence should be filed in Docket OST2008-0234, in accordance with the Department’s rules. We emphasize that we do not seek 

duplicative filings; to the extent that the Joint Applicants affirm that information sought in the 

attachment has already been filed in the docket along with the Joint Motion, they need only 

identify which documents satisfy the request. 

We remind the applicants of the importance of discussing the merits of the case on the public 

record to the maximum extent possible. To the extent necessary, however, the applicants may 

seek confidential treatment of the information in accordance with the Department’s regulations.2 

With the satisfactory submission of the information requested in the attachment, the evidence of 

record should be sufficient for us to establish a procedural schedule for comments and other such 

responsive pleadings necessary to act on the Joint Motion. 

We will serve this order on all parties on the service list in this docket. 

ACCORDINGLY: 

We direct Air Canada, The Austrian Group, British Midland Airways Ltd., Continental Airlines, 

Inc., Deutsche Lufthansa AG, Polskie Linie Lotnicze LOT S.A., Scandinavian Airlines System, 

Swiss International Airlines, Ltd., TAP Air Portugal, and United Air Lines, Inc., as well as the 

affiliates of the above carriers, to file in the docket the additional information and evidence 

described in the Attachment to this Order. 

 

2 14 C.F.R. § 302.12 (Rule 12).
3

By: 

SUSAN L. KURLAND 

Assistant Secretary for Aviation 

and International Affairs 

(SEAL) 

An electronic version of this document is available at: http://www.regulations.gov
1 

ATTACHMENT 

Evidence Request for the Addition of Brussels Airlines 

Docket DOT-OST-2008-0234 

General Instructions

 

1. The following definitions of terms used in this request apply: 

A. “You,” “Your,” “Your Company,” “Joint Applicants,” “Partner(s),” “Party,” or “Parties” means 

Air Canada, The Austrian Group, British Midland Airways Ltd., Brussels Airlines or “SN”, 

Continental Airlines, Deutsche Lufthansa AG or “LH”, Polskie Linie Lotnicze LOT S.A., 

Scandinavian Airlines Systems, Swiss International Airlines Ltd., TAP Air Portugal and United 

Airlines or “UA”, as well as each of their regional affiliates, individually and collectively, as part 

of either the existing Star Alliance or Atlantic Plus-Plus joint venture. These definitions also 

include your domestic and foreign parents, predecessors, divisions, and all officers and directors 

who work at your corporate headquarters (the site where your chief executives and senior 

operating, marketing, and financial officers are located). 

B. “Joint Motion” means your motion to recognize Brussels Airlines’ participation in the alliance 

agreements submitted to DOT on April 21, 2011. 

C. “Alliance Agreement(s)” means the commercial agreements referred to by the Parties in footnote 3 

of the Joint Motion. 

D. “Atlantic Plus-Plus Joint Venture” or “joint venture” means the planned joint venture/commercial 

arrangement between and among the Parties that is referred to on page 2 of the Joint Motion. 

E. “ATI” refers to antitrust immunity. 

F. “Document(s)” means (1) all written, recorded, transcribed, electronic, or graphic material, 

including letters, electronic mail, memoranda, reports, studies, forecasts, lists, presentation 

materials, agendas, records, notes, and directives, as well as minutes and records of meetings, 

conferences, telephone or other conversations or communications; and (2) all information 

contained in data processing equipment. Except where otherwise specified, a request for 

Documents is limited to documents created or revised for and/or by the Parties between July 1, 

2009 and the date of issuance of the attached order. Copies of Documents requested herein shall be 

full, complete and unredacted. For each Document, if not contained in the Document itself, include 

the date of preparation and the name and title of each individual who prepared the Document. 

G. “Discuss” means analyze, constitute, summarize, report on, consider, recommend, set forth, or 

describe a subject, regardless of the length of the discussion. Documents that merely mention or 

refer to a subject without further elaboration do not discuss that subject. Documents that discuss a 

particular subject include all Documents that contain reports, studies, forecasts, analyses, plans, 

proposals, evaluations, recommendations, directives, procedures, policies, guidelines, or any other 

comments that address or concern the subject, or that constitute a discussion of the subject. 

H. “And” and “or” shall be construed disjunctively and conjunctively as necessary in order to bring 

within the scope of each information directive all responses that might otherwise be construed to be 

outside its scope. 
2 

I. “Plans” means tentative and preliminary proposals, recommendations, analyses, forecasts, or 

considerations, whether or not finalized or authorized, as well as those that have been adopted. 

2. All responses to these information directives shall reflect the cumulative knowledge of the responding 

Parties and shall be accompanied by a sworn statement or statement under penalty of perjury, executed 

by a responsible officer of the responding Party, that the responses are full, complete, and accurate. All 

responses shall identify clearly the information directives to which they respond, as well as the 

person(s) who is (are) the source(s) of the information. Supplemental responses shall be submitted in 

the event that information is discovered after submission of the initial responses. 

3. Documents produced in response to any request shall be consecutively numbered, and shall be marked 

with the number of the request to which they respond. Responding carriers shall prepare an index of 

the documents produced, setting forth the document number, date, preparer, addressee, and subject of 

each document, and the information directive to which it responds. 

4. These information directives are requesting only material and documents now or previously located at 

corporate headquarters of any of the Parties (the site where the Parties’ chief executives and senior 

operating, marketing, and financial officers are located) and only those documents, material, and 

messages prepared by or for the Board of Directors, senior management, or middle management 

responsible for strategic planning, marketing, alliance relations, pricing, revenue management, or 

schedule and route planning. 

5. Please provide an original and three copies of all Documents. The original filing should be on 8.5" x 

11" paper using dark ink and be unbound without tabs which will expedite use of our docket imaging 

system. All documents must be submitted in English. To the extent that the carriers deem it necessary, 

they may seek confidential treatment of the information as set forth in the Department’s regulations. 

Documents to Be Provided

Please provide all documents requested below. If you withhold responsive documents based upon the 

assertion of privilege, you must submit a privilege log as required by 14 C.F.R. § 303.04(h). Do not 

resubmit documents that have already been submitted to DOT in connection with the Joint Motion. 

Whether previously or newly submitted, you should identify the reference number(s) of the documents 

responsive to the requests below: 

1. The Form CO notification document submitted to the European Commission concerning LH’s 

acquisition of SN, including relevant annexes that discuss shareholdings, ownership, control, and LH’s 

or SN’s alliance strategy. 

2. The entire document, including appendices, containing the exhibit titled “Schedule 7,” which was 

submitted along with the April 21, 2011, Joint Motion. If different, also provide the September 15, 

2008, Acquisition Agreement between SN Airholding SA/NA (“SNAH”) and Deutsche Lufthansa AG 

referenced on page 225 of the June 22, 2009, decision of the Commission of European Communities 

pertaining to Case No. COMP/M.5335 – Lufthansa/SN Airholdings. 

 

3. Forecasts and analyses regarding SN’s potential entry into the Atlantic Plus-Plus joint venture and 

potential new transatlantic service to be operated by SN. 

Clarification Questions

Please provide responses to the following inquiries: 
3 

1. Provide the names and principal business of all persons holding or potentially holding (e.g., by 

exercising options) an equity interest in SNAH and SN. 

a. State the amount of stock held by class or series, and the percentage of each type of stock owned or 

potentially owned by each such person. 

b. If any such person is a partnership or corporation, provide the identity (as noted above) of each 

partner or each person holding 10 percent or more of the stock of the corporation. If any shares are 

held for the benefit of another, identify the beneficial owners. 

c. Discuss any potential changes to the equity structure of SNAH or SN by virtue of warrants, 

options, swaps, calls, puts, or other instruments or mechanisms, and provide copies all instruments 

pertaining to such transactions. 

2. Describe each class or series of stock issued and authorized by SNAH. Such description should 

include: 

a. The number of shares authorized; 

 

b. The number of shares issued; 

c. Convertibility into other classes or series of stock; 

d. Representation on the board of directors; 

e. Other voting rights; 

f. Receipt of dividends; 

g. Consequences of failure to pay such dividends; and 

h. Liquidation preferences. 

3. Provide additional detailed explanation to support the statements on pages 10 and 11 of the Joint 

Motion, specifically addressing: 

a. The extent to which Austrian, British Midland, and Swiss participate in the joint venture today and 

how the coordination between those affiliates and the members of the joint venture works in 

practice; 

b. The specific benefits that you expect to achieve from the inclusion of SN – i.e., the business case 

for SN’s inclusion; and 

c. The competitive and commercial effects of continuing to exclude SN from joint venture 

cooperation, including the impact on the joint venture’s stated goal of metal neutrality. 

4. Explain the nature of the legal risks that would exist for the Joint Applicants, including United 

Airlines, if antitrust immunity is not granted.