### 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 14 th 

### 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 ADDI TIONAL INFORMATION

SUMMARY

By this Order, the Department requests ad ditional information, from the above-captioned members of the Star Alliance, together referred to as the “Joint Applicants.” We find that the

additional information is nece ssary to analyze the pending matter. With the satisfactory submission of the information requested, the evid ence of record should be sufficient for us to establish a procedural schedul e and act on this matter.

BACKGROUND

On April 21, 2011, the Joint Applicants submitted a joint motion 1 

### 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 schedul e until we could determine that the record is substantially complete.

1 See Joint Motion (April 21, 2011).

### 2 DECISION

We have decided to seek addi tional 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 r ecord 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 in formation requested, the Department will not have sufficiently detailed ev idence to make an informed decision on issues raised by the Joint Motion.

Accordingly, we hereby require the Star carrier s 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 docke t along with the Joint Motion, they need only identify which documents sa tisfy 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 th e 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 Lotn icze LOT S.A., Scandinavian Airlines System, Swiss International Airlines, Ltd., TAP Air Portuga l, and United Air Lines, Inc., as well as the affiliates of the above carriers, to file in the docket the addi tional 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 te rms 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 Interna tional Airlines Ltd., TAP Air Portugal and United Airlines or “UA”, as well as each of their regional affiliates, individually an d collectively, as part of either the existing Star Alliance or Atlantic Plus-Plus joint venture. These definitions also include your domestic and foreign parents, predeces sors, 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 Br ussels Airlines’ participation in the alliance agreements submitted to DOT on April 21, 2011.

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

of the Joint Motion.

D. “Atlantic Plus-Plus Joint Venture” or “joint ve nture” 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. Excep t where otherwise specified, a request for

Documents is limited to documents created or revi sed 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 th e name and title of each individual who prepared the Document.

G. “Discuss” means analyze, constitu te, 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 constr ued disjunctively and c onjunctively 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 proposal s, recommendations, analyses, forecasts, or considerations, whether or not finalized or aut horized, as well as those that have been adopted.

2. All responses to these information directives sha ll reflect the cumulative knowledge of the responding Parties and shall be accompanied by a sworn statemen t 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 inform ation. Supplemental responses shall be submitted in

the event that information is discovered af ter submission of the initial responses.

3. Documents produced in response to any request sh all be consecutively numbered, and shall be marked with the number of the request to which they res pond. Responding carriers shall prepare an index of the documents produced, setting forth the document num ber, date, preparer, addressee, and subject of each document, and the information directive to which it responds.

4. These information directives are requesting only mate rial 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 lo cated) and only those documents, material, and messages prepared by or for the Board of Dir ectors, senior management, or middle management responsible for strategic planning, marketing, a lliance relations, pricing, revenue management, or schedule and route planning.

5. Please provide an original and three copies of all Do cuments. The original filing should be on 8.5" x 11" paper using dark ink and be unbound without ta bs which will expedite u se 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 informat ion 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 submitte d to DOT in connection with the Joint Motion. Whether previously or newly submitted, you should id entify the reference numb er(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, owners hip, 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 J une 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 a ll 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 corporatio n, 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 stru cture 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 explana tion 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 an d 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 c ontinuing to exclude SN from joint venture cooperation, including the impact on the join t venture’s stated goal of metal neutrality.

4. Explain the nature of the legal risks that woul d exist for the Joint Applicants, including United Airlines, if antitrust immunity is not granted.