# Official Journal C 195/2012

| | ISSN 1977-091X
  doi:10.3000/1977091X.C_2012.195.eng |
| --- | --- |
| Official Journal
  of the European Union | C 195 |
| | |
| English edition | Information and Notices | Volume 553 July 2012 |

ISSN 1977-091X

doi:10.3000/1977091X.C_2012.195.eng

Official Journal

of the European Union

C 195

English edition

Information and Notices

Volume 553 July 2012

---

| Notice No | Contents | page |
| --- | --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2012/C 195/01 | Non-opposition to a notified concentration (Case COMP/M.6592 — Naxicap/Achares/Pro-Struct/Accent Jobs for People) (
  1
  ) | 1 |
| 2012/C 195/02 | Non-opposition to a notified concentration (Case COMP/M.6546 — Ericsson/Technicolor Broadcasting Services) (
  1
  ) | 1 |
| 2012/C 195/03 | Non-opposition to a notified concentration (Case COMP/M.6559 — Eurochem Trading GMBH/K+S Nitrogen) (
  1
  ) | 2 |
| 2012/C 195/04 | Non-opposition to a notified concentration (Case COMP/M.6583 — KIB/BDMI/Bidmanagement) (
  1
  ) | 2 |
| 2012/C 195/05 | Non-opposition to a notified concentration (Case COMP/M.6614 — Samsung Electronics/Samsung Mobile Display) (
  1
  ) | 3 |
| 2012/C 195/06 | Non-opposition to a notified concentration (Case COMP/M.6617 — Trafigura/Baycliffe/Blue Ocean) (
  1
  ) | 3 |

Notice No

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2012/C 195/01

Non-opposition to a notified concentration (Case COMP/M.6592 — Naxicap/Achares/Pro-Struct/Accent Jobs for People) (
  1
  )

1

1

2012/C 195/02

Non-opposition to a notified concentration (Case COMP/M.6546 — Ericsson/Technicolor Broadcasting Services) (
  1
  )

1

1

2012/C 195/03

Non-opposition to a notified concentration (Case COMP/M.6559 — Eurochem Trading GMBH/K+S Nitrogen) (
  1
  )

1

2

2012/C 195/04

Non-opposition to a notified concentration (Case COMP/M.6583 — KIB/BDMI/Bidmanagement) (
  1
  )

1

2

2012/C 195/05

Non-opposition to a notified concentration (Case COMP/M.6614 — Samsung Electronics/Samsung Mobile Display) (
  1
  )

1

3

2012/C 195/06

Non-opposition to a notified concentration (Case COMP/M.6617 — Trafigura/Baycliffe/Blue Ocean) (
  1
  )

1

3

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2012/C 195/07 | Euro exchange rates | 4 |
| 2012/C 195/08 | Opinion of the Advisory Committee on mergers given at its meeting of 13 January 2011 concerning a preliminary draft decision relating to Case COMP/M.5830 — Olympic/Aegean — Rapporteur: United Kingdom | 5 |
| 2012/C 195/09 | Final report of the Hearing Officer — COMP/M.5830 — Olympic/Aegean Airlines | 7 |
| 2012/C 195/10 | Summary of Commission Decision of 26 January 2011 declaring a concentration to be incompatible with the internal market and the EEA Agreement (Case COMP/M.5830 — Olympic/Aegean Airlines) (notified under document C(2011) 316 final)
   (
  1
  ) | 11 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2012/C 195/07

Euro exchange rates

4

2012/C 195/08

Opinion of the Advisory Committee on mergers given at its meeting of 13 January 2011 concerning a preliminary draft decision relating to Case COMP/M.5830 — Olympic/Aegean — Rapporteur: United Kingdom

5

2012/C 195/09

Final report of the Hearing Officer — COMP/M.5830 — Olympic/Aegean Airlines

7

2012/C 195/10

Summary of Commission Decision of 26 January 2011 declaring a concentration to be incompatible with the internal market and the EEA Agreement (Case COMP/M.5830 — Olympic/Aegean Airlines) (notified under document C(2011) 316 final)
   (
  1
  )

(notified under document C(2011) 316 final)

1

11

| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY |
| | European Commission |
| 2012/C 195/11 | Notice of the impending expiry of certain anti-dumping measures | 18 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY

European Commission

2012/C 195/11

Notice of the impending expiry of certain anti-dumping measures

18

| | |
| --- | --- |
| | (1)   Text with EEA relevance |

---

(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

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II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 3.7.2012 | EN | Official Journal of the European Union | C 195/1 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/1

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Non-opposition to a notified concentration

(Case COMP/M.6592 — Naxicap/Achares/Pro-Struct/Accent Jobs for People)

(Text with EEA relevance)

2012/C 195/01

On 25 June 2012, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in French and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6592. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6592. EUR-Lex is the on-line access to the European law.

---

| 3.7.2012 | EN | Official Journal of the European Union | C 195/1 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/1

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Non-opposition to a notified concentration

(Case COMP/M.6546 — Ericsson/Technicolor Broadcasting Services)

(Text with EEA relevance)

2012/C 195/02

On 22 June 2012, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6546. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6546. EUR-Lex is the on-line access to the European law.

---

| 3.7.2012 | EN | Official Journal of the European Union | C 195/2 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/2

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Non-opposition to a notified concentration

(Case COMP/M.6559 — Eurochem Trading GMBH/K+S Nitrogen)

(Text with EEA relevance)

2012/C 195/03

On 25 June 2012, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6559. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6559. EUR-Lex is the on-line access to the European law.

---

| 3.7.2012 | EN | Official Journal of the European Union | C 195/2 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/2

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Non-opposition to a notified concentration

(Case COMP/M.6583 — KIB/BDMI/Bidmanagement)

(Text with EEA relevance)

2012/C 195/04

On 19 June 2012, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in German and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6583. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6583. EUR-Lex is the on-line access to the European law.

---

| 3.7.2012 | EN | Official Journal of the European Union | C 195/3 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/3

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Non-opposition to a notified concentration

(Case COMP/M.6614 — Samsung Electronics/Samsung Mobile Display)

(Text with EEA relevance)

2012/C 195/05

On 19 June 2012, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6614. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6614. EUR-Lex is the on-line access to the European law.

---

| 3.7.2012 | EN | Official Journal of the European Union | C 195/3 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/3

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Non-opposition to a notified concentration

(Case COMP/M.6617 — Trafigura/Baycliffe/Blue Ocean)

(Text with EEA relevance)

2012/C 195/06

On 25 June 2012, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6617. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32012M6617. EUR-Lex is the on-line access to the European law.

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 3.7.2012 | EN | Official Journal of the European Union | C 195/4 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/4

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Euro exchange rates (1)

2 July 2012

2012/C 195/07

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,2593 |
| JPY | Japanese yen | 100,51 |
| DKK | Danish krone | 7,4343 |
| GBP | Pound sterling | 0,80410 |
| SEK | Swedish krona | 8,7440 |
| CHF | Swiss franc | 1,2015 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 7,5255 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 25,515 |
| HUF | Hungarian forint | 286,20 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,6967 |
| PLN | Polish zloty | 4,2205 |
| RON | Romanian leu | 4,4503 |
| TRY | Turkish lira | 2,2775 |
| AUD | Australian dollar | 1,2283 |
| CAD | Canadian dollar | 1,2808 |
| HKD | Hong Kong dollar | 9,7676 |
| NZD | New Zealand dollar | 1,5667 |
| SGD | Singapore dollar | 1,5959 |
| KRW | South Korean won | 1 440,68 |
| ZAR | South African rand | 10,2766 |
| CNY | Chinese yuan renminbi | 7,9948 |
| HRK | Croatian kuna | 7,5165 |
| IDR | Indonesian rupiah | 11 821,43 |
| MYR | Malaysian ringgit | 3,9833 |
| PHP | Philippine peso | 52,722 |
| RUB | Russian rouble | 41,0527 |
| THB | Thai baht | 39,819 |
| BRL | Brazilian real | 2,5347 |
| MXN | Mexican peso | 16,7865 |
| INR | Indian rupee | 69,8180 |

Currency

Exchange rate

USD

US dollar

1,2593

JPY

Japanese yen

100,51

DKK

Danish krone

7,4343

GBP

Pound sterling

0,80410

SEK

Swedish krona

8,7440

CHF

Swiss franc

1,2015

ISK

Iceland króna

NOK

Norwegian krone

7,5255

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

25,515

HUF

Hungarian forint

286,20

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,6967

PLN

Polish zloty

4,2205

RON

Romanian leu

4,4503

TRY

Turkish lira

2,2775

AUD

Australian dollar

1,2283

CAD

Canadian dollar

1,2808

HKD

Hong Kong dollar

9,7676

NZD

New Zealand dollar

1,5667

SGD

Singapore dollar

1,5959

KRW

South Korean won

1 440,68

ZAR

South African rand

10,2766

CNY

Chinese yuan renminbi

7,9948

HRK

Croatian kuna

7,5165

IDR

Indonesian rupiah

11 821,43

MYR

Malaysian ringgit

3,9833

PHP

Philippine peso

52,722

RUB

Russian rouble

41,0527

THB

Thai baht

39,819

BRL

Brazilian real

2,5347

MXN

Mexican peso

16,7865

INR

Indian rupee

69,8180

---

(1)  Source: reference exchange rate published by the ECB.

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| 3.7.2012 | EN | Official Journal of the European Union | C 195/5 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/5

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Opinion of the Advisory Committee on mergers given at its meeting of 13 January 2011 concerning a preliminary draft decision relating to Case COMP/M.5830 — Olympic/Aegean

Rapporteur: United Kingdom

2012/C 195/08

Concentration

| 1. | The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation. |
| --- | --- |

1.

The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

| 2. | The Advisory Committee agrees with the Commission that the notified transaction has a Community dimension pursuant to Article 1(3) of the Merger Regulation. |
| --- | --- |

2.

The Advisory Committee agrees with the Commission that the notified transaction has a Community dimension pursuant to Article 1(3) of the Merger Regulation.

Market definition

| 3. | The Advisory Committee agrees with the Commission’s definitions of the relevant markets in the draft decision.
  In particular, the Advisory Committee agrees with the Commission's approach to leave open in this case:






  (a) | the distinction between time-sensitive and non-time-sensitive passengers; and |
| --- | --- | --- |

3.

The Advisory Committee agrees with the Commission’s definitions of the relevant markets in the draft decision.

In particular, the Advisory Committee agrees with the Commission's approach to leave open in this case:

(a)

the distinction between time-sensitive and non-time-sensitive passengers; and

| (b) | the inclusion of ferry services in the relevant market for non-time-sensitive passengers and all passengers on the seven routes specified in the draft decision. |
| --- | --- |

(b)

the inclusion of ferry services in the relevant market for non-time-sensitive passengers and all passengers on the seven routes specified in the draft decision.

Situation absent the merger (counterfactual)

| 4. | The Advisory Committees agrees with the Commission that, for the purpose of the competition assessment of the proposed merger, the most likely situation absent the merger (relevant counterfactual) is the one whereby Aegean and Olympic Air would continue to be in actual competition on 10 Greek domestic routes and on a number of international routes as specified in the draft decision. |
| --- | --- |

4.

The Advisory Committees agrees with the Commission that, for the purpose of the competition assessment of the proposed merger, the most likely situation absent the merger (relevant counterfactual) is the one whereby Aegean and Olympic Air would continue to be in actual competition on 10 Greek domestic routes and on a number of international routes as specified in the draft decision.

Competition assessment

| 5. | The Advisory Committee agrees with the Commission's assessment that the notified transaction leads to a significant impediment of effective competition due to the elimination of actual competition between Aegean and Olympic Air on the following nine domestic routes:






  (a) | Athens–Thessaloniki; |
| --- | --- | --- |

5.

The Advisory Committee agrees with the Commission's assessment that the notified transaction leads to a significant impediment of effective competition due to the elimination of actual competition between Aegean and Olympic Air on the following nine domestic routes:

(a)

Athens–Thessaloniki;

| (b) | Athens–Herakleion; |
| --- | --- |

(b)

Athens–Herakleion;

| (c) | Athens–Chania; |
| --- | --- |

(c)

Athens–Chania;

| (d) | Athens–Rhodes; |
| --- | --- |

(d)

Athens–Rhodes;

| (e) | Athens–Santorini; |
| --- | --- |

(e)

Athens–Santorini;

| (f) | Athens–Mytilini; |
| --- | --- |

(f)

Athens–Mytilini;

| (g) | Athens–Chios; |
| --- | --- |

(g)

Athens–Chios;

| (h) | Athens–Kos; and |
| --- | --- |

(h)

Athens–Kos; and

| (i) | Athens–Samos. |
| --- | --- |

(i)

Athens–Samos.

| 6. | The Advisory Committee agrees with the Commission that the proposed transaction would significantly impede effective competition as a result of the elimination of a credible potential entrant on the Athens–Corfu route. |
| --- | --- |

6.

The Advisory Committee agrees with the Commission that the proposed transaction would significantly impede effective competition as a result of the elimination of a credible potential entrant on the Athens–Corfu route.

| 7. | The Advisory Committee agrees with the Commission that the proposed transaction would not significantly impede effective competition as concerns the market for attribution of PSO routes in Greece. |
| --- | --- |

7.

The Advisory Committee agrees with the Commission that the proposed transaction would not significantly impede effective competition as concerns the market for attribution of PSO routes in Greece.

| 8. | The Advisory Committee agrees with the Commission that the proposed transaction would not significantly impede effective competition as concerns the market for groundhandling in Greece. |
| --- | --- |

8.

The Advisory Committee agrees with the Commission that the proposed transaction would not significantly impede effective competition as concerns the market for groundhandling in Greece.

Entry

| 9. | The Advisory Committee agrees with the Commission's conclusion that no post-merger entry by international and/or domestic carriers establishing a base at Athens airport is likely in the foreseeable future. |
| --- | --- |

9.

The Advisory Committee agrees with the Commission's conclusion that no post-merger entry by international and/or domestic carriers establishing a base at Athens airport is likely in the foreseeable future.

The parties' financial situation

| 10. | Although not formally put forward by the Notifying Parties, the Advisory Committee agrees with the Commission's analysis of the failing firm defense criteria and the Commission's conclusion that these criteria would not be met in the present case. |
| --- | --- |

10.

Although not formally put forward by the Notifying Parties, the Advisory Committee agrees with the Commission's analysis of the failing firm defense criteria and the Commission's conclusion that these criteria would not be met in the present case.

Commitments offered by the notifying parties

| 11. | The Advisory Committee agrees with the Commission's assessment that the final commitments offered by the notifying parties on 6 December 2010 do not address the competition concerns identified in the market investigation in an adequate manner and are therefore not likely to eliminate the significant impediment to effective competition resulting from the merger. |
| --- | --- |

11.

The Advisory Committee agrees with the Commission's assessment that the final commitments offered by the notifying parties on 6 December 2010 do not address the competition concerns identified in the market investigation in an adequate manner and are therefore not likely to eliminate the significant impediment to effective competition resulting from the merger.

| 12. | The Advisory Committee agrees with the Commission's assessment that the final commitments offered by the notifying parties on 6 December 2010 would not lead to likely, timely and sufficient entry by one or more airlines. |
| --- | --- |

12.

The Advisory Committee agrees with the Commission's assessment that the final commitments offered by the notifying parties on 6 December 2010 would not lead to likely, timely and sufficient entry by one or more airlines.

| 13. | The Advisory Committee agrees with the Commission's assessment that in the absence of a timely, likely and sufficient entry, the mere existence of the commitments would not discipline the merged entity and counteract anticompetitive effects of the proposed transaction. |
| --- | --- |

13.

The Advisory Committee agrees with the Commission's assessment that in the absence of a timely, likely and sufficient entry, the mere existence of the commitments would not discipline the merged entity and counteract anticompetitive effects of the proposed transaction.

Conclusion

| 14. | The Advisory Committee agrees with the Commission's conclusion that in view of the anticompetitive effects of the proposed transaction and in the absence of an adequate remedy, the notified concentration must be declared incompatible with the internal market and the functioning of the EEA Agreement. |
| --- | --- |

14.

The Advisory Committee agrees with the Commission's conclusion that in view of the anticompetitive effects of the proposed transaction and in the absence of an adequate remedy, the notified concentration must be declared incompatible with the internal market and the functioning of the EEA Agreement.

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| 3.7.2012 | EN | Official Journal of the European Union | C 195/7 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/7

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Final report of the Hearing Officer (1)

COMP/M.5830 — Olympic/Aegean Airlines

2012/C 195/09

INTRODUCTION

The three Greek groups of companies, Vassilakis, Marfin Investment and Laskaridis (collectively ‘the notifying parties’) notified the Commission on 24 June 2010 of their acquisition of joint control by way of purchase of shares over a newly merged company including the businesses of Aegean Airlines SA and Olympic Air SA.

Upon examination of the notification, the Commission concluded that the operation falls within the scope of the Merger Regulation (2) and that the operation raised serious doubts as to its compatibility with the internal market and the Agreement on the European Economic Area. Accordingly, on 30 July 2010, the Commission initiated proceedings and opened a Phase II investigation pursuant to Article 6(1)(c) of the Merger Regulation.

THE PROCEDURE IN PHASE II

A statement of objections was sent to the notifying parties on 20 October 2010 (the ‘SO’), in which the Commission set out its preliminary conclusion that the concentration would significantly impede effective competition on the markets for scheduled air transport for passengers on 11 Greek domestic routes and 2 international routes due to the elimination of actual competition, as well as on 5 Greek domestic routes due to the elimination of potential competition; furthermore on the market for the attribution of public service obligation (‘PSO’) routes in Greece and on the market for the provision of ground handling services at Greek airports. The notifying parties submitted written comments on the SO within the set time limit on 5 November 2010.

ACCESS TO THE FILE

After having been given access to the file, the notifying parties submitted a request to me on 3 November 2010 for further access to some information found in the file which had been redacted for confidentiality reasons by the information provider (the ‘requested information’). The notifying parties claimed that the requested information might contain information on the entry in the relevant markets of a potential competitor, which would have an impact on the competitive analysis. Upon an assessment of the confidentiality claims made by the information provider, full access was given to the notifying parties to some of the requested information. For other parts of the requested information, the information provider agreed to a limited disclosure to the external legal counsel representing the notifying parties under a non-disclosure agreement restricting the use of the information so accessible. The Commission in its access to file exercise had already provided the notifying parties with access to other information in the file under a similar non-disclosure agreement procedure. Furthermore, regarding the remaining part of the requested information, I found that this constituted business secrets and its disclosure was not necessary to safeguard the notifying parties' rights of defence. The decision, based on Article 8 of the Mandate, was communicated to the notifying parties on 10 November 2010. The notifying parties did not make any further comments on this issue.

ADMISSION OF THIRD PARTIES

Requests for admission to the proceedings were received from the following seven third parties: Athens Airways SA, EKPIZO — the Greek consumers' association, Goldair Handling SA, Swissport Hellas SUD SA, Swissport International Ltd, Swissport Hellas SA, Sky Express SA and the Hellenic Airline Pilots Association (‘HALPA’). I have admitted all parties except for Swissport International Ltd, Swissport Hellas SA and Sky Express SA which did not reply to requests for clarifications and additional information.

Pursuant to Article 16 of the Implementing Regulation (3), the admitted third parties were provided with information on the nature and subject-matter of the proceedings and were invited by the Commission to make observations. The Commission continued to provide them with further information throughout the proceedings.

The notifying parties requested that the status of interested third party granted to Athens Airways be withdrawn. They argued that Athens Airways could no longer demonstrate a sufficient interest in the proceedings given that it no longer operated in the Greek domestic market for the air transport of passengers since September 2010. It was responded to the notifying parties that the change in Athens Airways' operations did not mean that it no longer had sufficient interest. The notifying parties reiterated their request, which was ultimately rejected on the basis that Athens Airways showed sufficient interest in the proceedings, because, at that time, it prima facie appeared to be a potential competitor and had actively participated in the proceedings.

Upon examination of their written requests to attend the oral hearing, I admitted Athens Airways, EKPIZO and Swissport Hellas SUD. Goldair Handling did not request attending the oral hearing. HALPA did not attend the oral hearing because its request to be admitted as interested third party was only submitted, and accepted, after the hearing had already taken place.

THE ORAL HEARING

In their reply to the SO, the notifying parties exercised their right to be heard in an oral hearing, which took place on 11 November 2010.

On the side of the notifying parties, the hearing was attended by representatives of Marfin Investment Group and Vassilakis, assisted by their external legal counsel and economic experts. For the Commission, the oral hearing was attended by some members of the Cabinet of Vice-President Commissioner Almunia and of the senior management of the Directorate-General for Competition, the case team, the chief economist team as well as by representatives from the Legal Service, the Directorate-General for Enterprise and Industry and the Directorate-General for Mobility and Transport.

Upon request of the notifying parties, the hearing was partly held as an in camera session.

THE POST ORAL HEARING PHASE

Following the hearing, the notifying parties' submitted a first set of commitments on 12 November 2010 which were replaced by a substantially revised package after a state-of-play meeting with Competition DG. The commitments related to the market for air transport of passengers on four Greek domestic routes where Olympic Air and Aegean Airlines are actual competitors and to the market for attribution of PSO routes in Greece. They consisted of the release of slots and other ancillary measures such as the possibility for new entrant to conclude interlining agreements with the merged entity. The Commission launched a market test in order to gather views on the effectiveness of the submitted commitments and their ability to maintain competition.

On 18 November 2010, the Commission issued a supplementary statement of objections (the ‘SSO’). In the SSO, the Commission clarified that the transaction would significantly impede effective competition on 10 Greek domestic routes irrespective of the precise market definition and in particular irrespective of whether the market should be further subdivided into time-sensitive and non-time-sensitive passengers, because the competitive assessment would remain essentially the same even if the market encompassing all passengers were to be considered. It then assessed the competition impact of the notified transaction in essentially the same manner as before in the SO. The notifying parties responded on 23 November 2010 without asking for an oral hearing. Instead, the notifying parties requested, and were granted, the possibility to make known their views orally in a meeting with Competition DG.

On 6 December 2010, the Commission sent a letter of facts (‘LoF’) to the notifying parties. The LoF exclusively deals with the effects of ferry competition on the relevant markets and adds economic analysis in support of the Commission's conclusions set out in the SO and SSO. It concludes that ferry services are only a distant substitute to air travel services.

The notifying parties argued that the LoF raised several procedural issues. First, they considered that they did not have sufficient access to the underlying data to meaningfully comment on the economic analysis contained in the LoF. In response, the Commission organised a data room, with the agreement of the information providers, to grant access to the underlying data to the notifying parties' economic advisers under conditions of confidentiality. As I received no further comments in this regard, I consider that this issue was resolved.

Second, the notifying parties considered that the LoF contained new material and analysis, so that the Commission should have addressed them in an SSO instead. They also requested to be heard on the LoF at an oral hearing. By letter of 15 December 2010, I rejected the notifying parties’ request for such hearing. I considered that the LoF contained no new or modified objections, but referred to evidence collected by the Commission before the adoption of the SO which was partially presented in the SO and merely supported the objections already set out in the SO and the SSO. The notifying parties could therefore not rely on any right to an oral hearing on the LoF. Furthermore, while the Commission has a discretion under Article 14(1) of the Implementing Regulation to organise another oral hearing, I came to the conclusion that in this case, this was not justified because the issues covered in the LoF were of a limited scope and the notifying parties could fully exercise their right to be heard by submitting written comments on the LoF. The Commission however agreed to a meeting, held on 17 December 2010, with the notifying parties to discuss the issues raised in the LoF.

Finally, in their reply to the LoF, the notifying parties objected to the issuance of the LoF on day 70 of the Phase II procedure because it infringed their rights of defence and breached their right to due process under Article 6 of the European Convention on Human Rights. They claimed that it is contrary to due process for them to have submitted commitment proposals while the LoF showed that certain competition issues still remained open for the Commission. Furthermore, they argued that the timing of the LoF meant that the Commission could not take into account their reply to the LoF before starting to assess the responses to the market inquiry concerning their latest commitment proposal. However, no specific request was submitted to me in relation to the above objection. I considered, nonetheless, that the objection was not founded and decided that no action was necessary. It has already been pointed out that the LoF did not change any of the existing objections. It could therefore not negatively affect the notifying parties’ ability to propose commitments to the Commission. Moreover, there was no reason to assume that the Commission would not be able to take into account the notifying parties’ reply to the LoF and its putative consequences for the latest commitment proposal. Indeed, pursuant to Article 18(1) of the Merger Regulation, it is until the consultation of the Advisory Committee that the parties have a right to make known their views on the objections of the Commission, and the latter is obliged to take into account any comment submitted to it until then. Finally, when assessing alleged infringements of the right of defence and due process, it is necessary to take into account the necessity for speed, which characterises the general scheme of the Merger Regulation (4). It is therefore often unavoidable that the necessary procedural steps overlap and cannot be rigidly kept separate.

FURTHER COMMITMENTS AND MARKET TESTING

Following the preliminary results of the first market test, the notifying parties presented the Commission a new set of commitments on 29 November 2010, which were subsequently modified on 6 December 2010. These commitments further extended the scope of the commitments to cover all nine domestic routes for which actual competition concerns were maintained and also included non-discriminatory access to ground handling and maintenance, repair and overhaul services at Athens Airport or at any destination airport for the relevant identified city pairs. The Commission launched a second market test on 6 December 2010 and afterwards informed the notifying parties of the outcome in a state-of-play meeting.

I was not asked to examine the objectivity of the two market inquiries conducted by the Commission to assess the competition impact of the commitment packages proposed by the notifying parties (5). No such issue therefore seems to have arisen in this respect.

THE DRAFT DECISION

The draft final decision prohibiting the proposed concentration does not maintain all the objections which were set out in the SO. Some objections have been dropped, in particular those relating to air passenger transport on the two international routes and on several domestic routes (6). The competition concerns included in the SO relating to the Greek markets for the attribution of PSO routes and the provision of ground-handling services were also dropped.

As regards the Athens–Alexandroupolis route, the SO had reached the preliminary conclusion that the proposed concentration would lead to an impediment of actual competition between Aegean Airlines and Olympic Air. However, information available at a late stage of proceedings revealed that Olympic Air would not operate this route in the summer season 2011. Notably on this basis, the Commission concluded that no impediment of actual competition would arise out of the proposed concentration on this route. The draft decision submitted to the Advisory Committee however concluded that the proposed concentration would lead to an impediment of potential competition between Aegean Airlines and Olympic Air. This, I considered, would breach the notifying parties' right to be heard, since they had not been afforded the opportunity to make known their views on this modified objection. I informed Vice-President Commissioner Almunia, the Advisory Committee and relevant Commission services accordingly. Subsequently, the Commission decided not to uphold this modified objection in the final draft decision.

The draft final decision thus only maintains the objections concerning the impediment of effective actual competition on the markets for air passenger transport on nine domestic routes (7) as well as the impediment of potential competition on one domestic route (8). On these objections, the Commission has fully afforded the notifying parties the right to be heard.

CONCLUSION

I consider, therefore, that the right to be heard of all participants has been fully respected in this case.

Brussels, 19 January 2011.

Michael ALBERS

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(1)  Pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21 (the ‘Mandate’).

1

(2)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1). With effect from 1 December 2009, the Treaty on the Functioning of the European Union (‘TFEU’) has introduced certain changes, such as the replacement of ‘Community’ by ‘Union’ and ‘common market’ by ‘internal market’. The terminology of the TFEU will be used throughout this report.

2

(3)  Commission Regulation (EC) No 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1). This Regulation was amended by Commission Regulation (EC) No 1033/2008 (OJ L 279, 22.10.2008, p. 3).

3

(4)  See Case T-210/01, General Electric v Commission [2005] ECR II-5575, paragraph 702.

4

General Electric

Commission

(5)  Article 14 of the Mandate.

5

(6)  Athens–Mykonos and Athens–Alexandroupolis as regards the impediment of actual competition alleged in the SO, and Athens–Limnos, Athens–Kavala, Athens–Kefallonia, and Athens–Ioannina as regards the impediment of potential competition alleged in the SO.

6

actual

potential

(7)  The routes are: Athens–Thessaloniki, Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos.

7

(8)  The concerned route is Athens–Corfou.

8

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| 3.7.2012 | EN | Official Journal of the European Union | C 195/11 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/11

---

Summary of Commission Decision

of 26 January 2011

declaring a concentration to be incompatible with the internal market and the EEA Agreement

(Case COMP/M.5830 — Olympic/Aegean Airlines)

(notified under document C(2011) 316 final)

(Only the English text is authentic)

(Text with EEA relevance)

2012/C 195/10

On 26 January 2011, the Commission adopted a decision under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the Merger Regulation’)
   (1), and in particular Article 8(3) thereof. A non-confidential version of the decision can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address:

http://ec.europa.eu/comm/competition/index_en.html

| (1) | On 24 June 2010, the Commission received a notification of a proposed concentration (‘the transaction’) pursuant to Article 4 of Council Regulation (EC) No 139/2004 (‘the Merger Regulation’) by which the Vassilakis group of companies, Greece (‘Vassilakis’), Marfin Investment Group, Greece (‘Marfin’) and the Laskaridis group of companies, Greece (‘Laskaridis’) (collectively ‘the parties’) acquire joint control by way of purchase of shares over a newly merged company (‘the merged entity’) including the businesses of the following previously independent Greek companies:






  (a) | Aegean Airlines SA (‘Aegean’); and |
| --- | --- | --- |

(1)

On 24 June 2010, the Commission received a notification of a proposed concentration (‘the transaction’) pursuant to Article 4 of Council Regulation (EC) No 139/2004 (‘the Merger Regulation’) by which the Vassilakis group of companies, Greece (‘Vassilakis’), Marfin Investment Group, Greece (‘Marfin’) and the Laskaridis group of companies, Greece (‘Laskaridis’) (collectively ‘the parties’) acquire joint control by way of purchase of shares over a newly merged company (‘the merged entity’) including the businesses of the following previously independent Greek companies:

(a)

Aegean Airlines SA (‘Aegean’); and

| (b) | Olympic Air SA (‘Olympic Air’), Olympic Handling SA (‘Olympic Handling’) and Olympic Engineering SA (‘Olympic Engineering’) (collectively ‘Olympic’). |
| --- | --- |

(b)

Olympic Air SA (‘Olympic Air’), Olympic Handling SA (‘Olympic Handling’) and Olympic Engineering SA (‘Olympic Engineering’) (collectively ‘Olympic’).

I.   PARTIES

| (2) | Vassilakis is a privately owned Greek group of companies with investments in aviation (Aegean), ground handling (Goldair Handling), car rental and leasing as well as car import and distribution. |
| --- | --- |

(2)

Vassilakis is a privately owned Greek group of companies with investments in aviation (Aegean), ground handling (Goldair Handling), car rental and leasing as well as car import and distribution.

| (3) | Marfin is an investment group with investments in aviation (Olympic Air), ground handling (Olympic Handling), maintenance, repair and overhaul services (Olympic Engineering), in-flight catering (Olympic Catering), shipping (including Attica Group's Superfast and Blue Star shipping lines which are active on several routes between the Greek mainland and islands in the Aegean Sea as well as other car-passenger transport and freight services active in the Adriatic Sea), healthcare, IT and telecoms, tourism and leisure, and the food and beverages sectors. |
| --- | --- |

(3)

Marfin is an investment group with investments in aviation (Olympic Air), ground handling (Olympic Handling), maintenance, repair and overhaul services (Olympic Engineering), in-flight catering (Olympic Catering), shipping (including Attica Group's Superfast and Blue Star shipping lines which are active on several routes between the Greek mainland and islands in the Aegean Sea as well as other car-passenger transport and freight services active in the Adriatic Sea), healthcare, IT and telecoms, tourism and leisure, and the food and beverages sectors.

| (4) | Laskaridis is a privately owned group of companies with investments in aviation (Aegean), shipping and shipyards, ground handling, tourism and real estate. |
| --- | --- |

(4)

Laskaridis is a privately owned group of companies with investments in aviation (Aegean), shipping and shipyards, ground handling, tourism and real estate.

| (5) | Aegean is a listed independent Greek air carrier providing scheduled and charter air passenger transport as well as cargo transport. Since 1999, Aegean has been offering scheduled flights on Greek domestic routes as well as international short-haul routes. It operates a base at Athens International Airport and currently serves more than 45 short-haul destinations (including some public service obligation routes). Aegean joined the Star Alliance on 30 June 2010 (2). |
| --- | --- |

(5)

Aegean is a listed independent Greek air carrier providing scheduled and charter air passenger transport as well as cargo transport. Since 1999, Aegean has been offering scheduled flights on Greek domestic routes as well as international short-haul routes. It operates a base at Athens International Airport and currently serves more than 45 short-haul destinations (including some public service obligation routes). Aegean joined the Star Alliance on 30 June 2010 (2).

| (6) | Olympic is solely controlled by Marfin and consists of three entities:






  (i) | Olympic Air is active in air transport of passengers and cargo. It started its operations on 1 October 2009 following the privatisation of former Olympic Airlines in the course of which Marfin acquired the brand, slots and licenses of liquidated Olympic Airlines (3). Olympic Air operates a hub at Athens International Airport (‘AIA’) and serves around 40 short-haul destinations (including some public service obligation routes). It does not belong to any alliance; |
| --- | --- | --- |

(6)

Olympic is solely controlled by Marfin and consists of three entities:

(i)

Olympic Air is active in air transport of passengers and cargo. It started its operations on 1 October 2009 following the privatisation of former Olympic Airlines in the course of which Marfin acquired the brand, slots and licenses of liquidated Olympic Airlines (3). Olympic Air operates a hub at Athens International Airport (‘AIA’) and serves around 40 short-haul destinations (including some public service obligation routes). It does not belong to any alliance;

| (ii) | Olympic Handling offers a full range of ground handling services at 39 Greek airports, serving both Olympic Air and third party airlines; |
| --- | --- |

(ii)

Olympic Handling offers a full range of ground handling services at 39 Greek airports, serving both Olympic Air and third party airlines;

| (iii) | Olympic Engineering is currently in start-up mode and will be active in the provision of maintenance, repair and overhaul services ranging from handling of general events for a single aircraft to full support packages for commercial airplanes. |
| --- | --- |

(iii)

Olympic Engineering is currently in start-up mode and will be active in the provision of maintenance, repair and overhaul services ranging from handling of general events for a single aircraft to full support packages for commercial airplanes.

II.   CONCENTRATION AND EU DIMENSION

| (7) | The transaction concerns the acquisition of joint control over a newly merged company and therefore it constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation. |
| --- | --- |

(7)

The transaction concerns the acquisition of joint control over a newly merged company and therefore it constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

| (8) | The transaction has EU dimension within the meaning of Article 1(3) of the Merger Regulation. |
| --- | --- |

(8)

The transaction has EU dimension within the meaning of Article 1(3) of the Merger Regulation.

III.   PROCEDURE

| (9) | After the first phase market investigation, the Commission concluded that the transaction fell within the scope of the Merger Regulation and raised serious doubts as to its compatibility with the internal market and with the EEA Agreement. As a result, on 30 July 2010, the Commission initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation. |
| --- | --- |

(9)

After the first phase market investigation, the Commission concluded that the transaction fell within the scope of the Merger Regulation and raised serious doubts as to its compatibility with the internal market and with the EEA Agreement. As a result, on 30 July 2010, the Commission initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation.

| (10) | The second phase market investigation confirmed the existence of competition concerns on a number of markets leading to the issuance of a statement of objections (‘SO’) on 20 October 2010. The parties had the opportunity to make their views known through a written response to the SO and at an oral hearing held on 11 November 2010. On 18 November 2010, a supplementary statement of objections (‘SSO’) was sent to the parties; and on 6 December 2010, the Commission sent the parties a letter of facts. |
| --- | --- |

(10)

The second phase market investigation confirmed the existence of competition concerns on a number of markets leading to the issuance of a statement of objections (‘SO’) on 20 October 2010. The parties had the opportunity to make their views known through a written response to the SO and at an oral hearing held on 11 November 2010. On 18 November 2010, a supplementary statement of objections (‘SSO’) was sent to the parties; and on 6 December 2010, the Commission sent the parties a letter of facts.

| (11) | On 12 November 2010, the parties submitted commitments pursuant to Article 8(2) of the Merger Regulation. The commitments were modified at three occasions, ultimately leading to a submission of a final set of Commitments on 6 December 2010. To gather the views of market participants on the effectiveness of the proposed commitments, the Commission conducted two market tests. |
| --- | --- |

(11)

On 12 November 2010, the parties submitted commitments pursuant to Article 8(2) of the Merger Regulation. The commitments were modified at three occasions, ultimately leading to a submission of a final set of Commitments on 6 December 2010. To gather the views of market participants on the effectiveness of the proposed commitments, the Commission conducted two market tests.

| (12) | On 26 January 2011, the Commission adopted pursuant to Article 8(3) of the Merger Regulation a decision declaring the transaction to be incompatible with the internal market and the EEA agreement (the ‘Decision’). |
| --- | --- |

(12)

On 26 January 2011, the Commission adopted pursuant to Article 8(3) of the Merger Regulation a decision declaring the transaction to be incompatible with the internal market and the EEA agreement (the ‘Decision’).

IV.   RELEVANT MARKETS

1.   Air transport of passengers

1.1.   Traditional point of origin/point of destination (O&D) pair approach

| (13) | The transaction is assessed on the basis of the ‘point of origin/point of destination’ (O&D) approach, i.e. each O&D constitutes a separate market with its own characteristics in terms of passenger structure and product qualifications. |
| --- | --- |

(13)

The transaction is assessed on the basis of the ‘point of origin/point of destination’ (O&D) approach, i.e. each O&D constitutes a separate market with its own characteristics in terms of passenger structure and product qualifications.

1.2.   Time-sensitive vs. non-time-sensitive passengers

| (14) | The Commission has traditionally distinguished between two categories of passengers having different price sensitivity. Time-sensitive (price-insensitive) passengers tend to travel for business purposes, often require significant flexibility with their tickets (such as cost-free cancellation and modification of the time of departure, etc.) and are ready to pay higher prices for this flexibility. Non-time-sensitive (price-sensitive) customers travel predominantly for leisure purposes or to visit friends and relatives (‘VFR’), typically book long time in advance, do not generally require flexibility with their booking. |
| --- | --- |

(14)

The Commission has traditionally distinguished between two categories of passengers having different price sensitivity. Time-sensitive (price-insensitive) passengers tend to travel for business purposes, often require significant flexibility with their tickets (such as cost-free cancellation and modification of the time of departure, etc.) and are ready to pay higher prices for this flexibility. Non-time-sensitive (price-sensitive) customers travel predominantly for leisure purposes or to visit friends and relatives (‘VFR’), typically book long time in advance, do not generally require flexibility with their booking.

| (15) | The market investigation showed that time-sensitive passengers and non-time-sensitive passengers constitute two distinguishable groups of passengers. However, it can be left open for the purpose of this Decision whether time-sensitive and non-time-sensitive passengers belong to two separate markets or whether one market encompassing all passengers should be defined as the competitive assessment remains the same irrespective of the precise market definition. |
| --- | --- |

(15)

The market investigation showed that time-sensitive passengers and non-time-sensitive passengers constitute two distinguishable groups of passengers. However, it can be left open for the purpose of this Decision whether time-sensitive and non-time-sensitive passengers belong to two separate markets or whether one market encompassing all passengers should be defined as the competitive assessment remains the same irrespective of the precise market definition.

1.3.   Intermodal substitution

| (16) | When defining the relevant O&D markets for air transport services, the Commission has previously considered other transport alternatives to the extent that they are substitutable to air travel on the affected routes (intermodal competition). |
| --- | --- |

(16)

When defining the relevant O&D markets for air transport services, the Commission has previously considered other transport alternatives to the extent that they are substitutable to air travel on the affected routes (intermodal competition).

| (17) | In the case at hand, the parties claimed that intermodal competition by ferries is relevant on the Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Mykonos, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos routes to the extent that ferries should be included in the relevant market along with air services. Similarly, train services should be included in the relevant market on the Athens–Thessaloniki route. |
| --- | --- |

(17)

In the case at hand, the parties claimed that intermodal competition by ferries is relevant on the Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Mykonos, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos routes to the extent that ferries should be included in the relevant market along with air services. Similarly, train services should be included in the relevant market on the Athens–Thessaloniki route.

| (18) | However, the market investigation showed that transportation by ferries is generally a distant substitute for air travel on all problematic routes as ferry services offer significantly different product from air services differing along important competitive dimensions such as price, aggregate travel time, availability of schedules as well as quality, convenience and reliability of the service. The market investigation showed also that neither Aegean nor Olympic Air take into account ferries in their price settings. |
| --- | --- |

(18)

However, the market investigation showed that transportation by ferries is generally a distant substitute for air travel on all problematic routes as ferry services offer significantly different product from air services differing along important competitive dimensions such as price, aggregate travel time, availability of schedules as well as quality, convenience and reliability of the service. The market investigation showed also that neither Aegean nor Olympic Air take into account ferries in their price settings.

| (19) | Furthermore, the market investigation showed that considerable differences exist also between train and air services as concerns important competitive parameters such as travel time, level of frequencies and quality and convenience of service, and that train is not perceived as a relevant constraint by Aegean and Olympic Air and their competitors. |
| --- | --- |

(19)

Furthermore, the market investigation showed that considerable differences exist also between train and air services as concerns important competitive parameters such as travel time, level of frequencies and quality and convenience of service, and that train is not perceived as a relevant constraint by Aegean and Olympic Air and their competitors.

1.4.   Conclusion on market definitions

| (20) | It is concluded that, as concerns time-sensitive passengers, ferry services and air services form part of two separate markets, except for the Athens–Mykonos route. On the Athens–Mykonos route, air services and ferry services are part of the same product market as concerns time-sensitive passengers. As concerns the markets for non-time-sensitive passengers and all passengers, the question whether air services and ferry services belong to the same market can be left open for the purpose of this Decision, except for the Athens–Mykonos and Athens–Rhodes routes, as the competitive assessment would remain the same irrespective of whether ferry services are included or not to the relevant market. This is because, as will be shown in the route-by-route analysis, ferry services are only distant substitutes to air services on the routes of concern. For the Athens–Mykonos route, air and ferry services are part of the same product market as concerns the markets for non-time-sensitive passengers and for all passengers. For the Athens–Rhodes route, air and ferry services are not part of the same product market as concerns the markets for non-time-sensitive passengers and for all passengers. |
| --- | --- |

(20)

It is concluded that, as concerns time-sensitive passengers, ferry services and air services form part of two separate markets, except for the Athens–Mykonos route. On the Athens–Mykonos route, air services and ferry services are part of the same product market as concerns time-sensitive passengers. As concerns the markets for non-time-sensitive passengers and all passengers, the question whether air services and ferry services belong to the same market can be left open for the purpose of this Decision, except for the Athens–Mykonos and Athens–Rhodes routes, as the competitive assessment would remain the same irrespective of whether ferry services are included or not to the relevant market. This is because, as will be shown in the route-by-route analysis, ferry services are only distant substitutes to air services on the routes of concern. For the Athens–Mykonos route, air and ferry services are part of the same product market as concerns the markets for non-time-sensitive passengers and for all passengers. For the Athens–Rhodes route, air and ferry services are not part of the same product market as concerns the markets for non-time-sensitive passengers and for all passengers.

| (21) | Similarly, in relation to the Athens–Thessaloniki route, the market investigation showed that trains are not a real alternative to air services on this route as they are of substantially lower quality than air services. Therefore, train services are not to be included in the relevant market for any segment of passengers on the Athens–Thessaloniki route. |
| --- | --- |

(21)

Similarly, in relation to the Athens–Thessaloniki route, the market investigation showed that trains are not a real alternative to air services on this route as they are of substantially lower quality than air services. Therefore, train services are not to be included in the relevant market for any segment of passengers on the Athens–Thessaloniki route.

2.   Public service obligation (‘PSO’) routes

| (22) | Olympic Air and Aegean are currently competing on the market for attribution of PSO routes in Greece which are awarded by the HCAA following a tender process. |
| --- | --- |

(22)

Olympic Air and Aegean are currently competing on the market for attribution of PSO routes in Greece which are awarded by the HCAA following a tender process.

| (23) | Given that the transaction is unlikely to significantly impede effective competition on this market, irrespective of the precise market definition the Commission left the precise product and geographic market definition open as concerns the market for the attribution of PSO routes in Greece. |
| --- | --- |

(23)

Given that the transaction is unlikely to significantly impede effective competition on this market, irrespective of the precise market definition the Commission left the precise product and geographic market definition open as concerns the market for the attribution of PSO routes in Greece.

3.   Ground handling

| (24) | The transaction gave rise to a vertically affected market for ground handling at various Greek airports. |
| --- | --- |

(24)

The transaction gave rise to a vertically affected market for ground handling at various Greek airports.

| (25) | According to the precedents in this market, the relevant product market for the provision of ground handling services encompasses both passenger and aircraft handling. The Commission left the precise geographic market definition open in the Decision given that the transaction is unlikely to significantly impede effective competition in relation to the ground handling market, irrespective of the precise geographic market definition. |
| --- | --- |

(25)

According to the precedents in this market, the relevant product market for the provision of ground handling services encompasses both passenger and aircraft handling. The Commission left the precise geographic market definition open in the Decision given that the transaction is unlikely to significantly impede effective competition in relation to the ground handling market, irrespective of the precise geographic market definition.

4.   Other markets

| (26) | The transaction gave rise to other affected markets, namely the markets for maintenance, repair and overhaul (‘MRO’), in-flight catering, and supply of airline seats to tour operators. The precise market definition with regard to all of these markets was left open in the Decision as the transaction is not likely to significantly impede effective competition in relation to any of these markets, irrespective of the precise market definition. |
| --- | --- |

(26)

The transaction gave rise to other affected markets, namely the markets for maintenance, repair and overhaul (‘MRO’), in-flight catering, and supply of airline seats to tour operators. The precise market definition with regard to all of these markets was left open in the Decision as the transaction is not likely to significantly impede effective competition in relation to any of these markets, irrespective of the precise market definition.

V.   COMPETITIVE ASSESSMENT

1.   Analytical framework

| (27) | In its assessment of competitive effects of a transaction, the Commission has to compare the post-transaction situation with a situation likely to prevail absent the transaction (‘counterfactual’). |
| --- | --- |

(27)

In its assessment of competitive effects of a transaction, the Commission has to compare the post-transaction situation with a situation likely to prevail absent the transaction (‘counterfactual’).

| (28) | The parties claimed that the Greek market is too small to allow sustainable competing operations of two full service carriers such as Aegean and Olympic Air and as a result all routes can be profitably operated by only one carrier. Therefore, the parties submitted that it is unlikely that a situation whereby Aegean and Olympic Air would continue competing on a number of domestic and international routes would prevail absent the transaction. |
| --- | --- |

(28)

The parties claimed that the Greek market is too small to allow sustainable competing operations of two full service carriers such as Aegean and Olympic Air and as a result all routes can be profitably operated by only one carrier. Therefore, the parties submitted that it is unlikely that a situation whereby Aegean and Olympic Air would continue competing on a number of domestic and international routes would prevail absent the transaction.

| (29) | According to the market investigation, there are no reasons to believe that the Greek market cannot sustain operations by more than one carrier, possibly with different business models. The analysis of the competitive situation likely to prevail absent the transaction reveals that Olympic Air and Aegean would be able to both operate on the Greek market, possibly in a restructured or downsized form. |
| --- | --- |

(29)

According to the market investigation, there are no reasons to believe that the Greek market cannot sustain operations by more than one carrier, possibly with different business models. The analysis of the competitive situation likely to prevail absent the transaction reveals that Olympic Air and Aegean would be able to both operate on the Greek market, possibly in a restructured or downsized form.

| (30) | Aegean and Olympic Air are likely to continue competing on ten Greek domestic routes, namely Athens–Chania, Athens–Kos, Athens–Mykonos, Athens–Rhodes, Athens–Samos, Athens–Mytilini, Athens–Herakleion, Athens–Chios, Athens–Santorini and Athens–Thessaloniki in the foreseeable future absent the transaction. As a result, the Commission assessed the effects of the elimination of competition on these domestic routes. |
| --- | --- |

(30)

Aegean and Olympic Air are likely to continue competing on ten Greek domestic routes, namely Athens–Chania, Athens–Kos, Athens–Mykonos, Athens–Rhodes, Athens–Samos, Athens–Mytilini, Athens–Herakleion, Athens–Chios, Athens–Santorini and Athens–Thessaloniki in the foreseeable future absent the transaction. As a result, the Commission assessed the effects of the elimination of competition on these domestic routes.

| (31) | As concerns the international routes affected by the transaction, the question of the likely situation to prevail absent the merger was left open since the proposed concentration would not significantly impede effective competition on any of the international routes. |
| --- | --- |

(31)

As concerns the international routes affected by the transaction, the question of the likely situation to prevail absent the merger was left open since the proposed concentration would not significantly impede effective competition on any of the international routes.

2.   Assessment

2.1.   Air transport of passengers

2.1.1.   The transaction leads to very large market shares on a number of Greek domestic routes

| (32) | In the period January-June 2010, Olympic Air and Aegean together controlled [90-100 %] of passengers travelling on Greek domestic and [30-40 %] of passengers travelling on international routes out of AIA. |
| --- | --- |

(32)

In the period January-June 2010, Olympic Air and Aegean together controlled [90-100 %] of passengers travelling on Greek domestic and [30-40 %] of passengers travelling on international routes out of AIA.

| (33) | On the basis of a market definition excluding ferries and train on the routes where these modes are available, the transaction would have lead to extremely high combined market shares reaching 100 % in several instances. |
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(33)

On the basis of a market definition excluding ferries and train on the routes where these modes are available, the transaction would have lead to extremely high combined market shares reaching 100 % in several instances.

| (34) | Should the relevant markets encompass the other modes of transport (ferry or train depending on the route), the combined market shares of Aegean and Olympic Air would be significantly lower. However, given the limited competitive pressure other transport modes exert on air services due to very different product characteristics, such market shares would overestimate the significance of other modes of transport and greatly underestimate the actual competitive constraint exercised by Aegean and Olympic Air on each other. |
| --- | --- |

(34)

Should the relevant markets encompass the other modes of transport (ferry or train depending on the route), the combined market shares of Aegean and Olympic Air would be significantly lower. However, given the limited competitive pressure other transport modes exert on air services due to very different product characteristics, such market shares would overestimate the significance of other modes of transport and greatly underestimate the actual competitive constraint exercised by Aegean and Olympic Air on each other.

| (35) | Furthermore, Marfin, via its subsidiary Attica, solely controls two ferry companies active in Greece, namely Blue Star Ferries and Superfast Ferries. As a result, the competitive pressure of these ferry services on the merged entity is limited by the fact that they are controlled by Marfin. |
| --- | --- |

(35)

Furthermore, Marfin, via its subsidiary Attica, solely controls two ferry companies active in Greece, namely Blue Star Ferries and Superfast Ferries. As a result, the competitive pressure of these ferry services on the merged entity is limited by the fact that they are controlled by Marfin.

2.1.2.   Closeness of competition between Aegean and Olympic Air

| (36) | Aegean and Olympic Air have a very close competitive relationship. This clearly distinguishes them from other domestic airlines, active on a much lower scale, and from domestic ferry operators which offer products differing from those of Aegean and Olympic Air in several important competitive dimensions and whose pricing system is less sophisticated on domestic routes. |
| --- | --- |

(36)

Aegean and Olympic Air have a very close competitive relationship. This clearly distinguishes them from other domestic airlines, active on a much lower scale, and from domestic ferry operators which offer products differing from those of Aegean and Olympic Air in several important competitive dimensions and whose pricing system is less sophisticated on domestic routes.

2.1.3.   Treatment of routes exited by Olympic Air and Aegean after the announcement of the transaction

| (37) | Having analysed Aegean and Olympic Air's internal documents, the Commission found that exits following the announcement of the transaction by either Aegean or Olympic Air from the Athens–Kefallonia, Athens–Limnos, Athens–Sofia, Athens–Bucharest, Athens–Ioannina, Athens–Kavala, Athens–Tirana, Athens–Vienna, Athens–Corfu, Thessaloniki–Chania, Thessaloniki–Herakleion, Thessaloniki–Mytilini, Thessaloniki–Rhodes and Athens–Milan routes were already considered prior to the engagement of the transaction talks. As a result, such withdrawals of operations were not considered as merger specific. |
| --- | --- |

(37)

Having analysed Aegean and Olympic Air's internal documents, the Commission found that exits following the announcement of the transaction by either Aegean or Olympic Air from the Athens–Kefallonia, Athens–Limnos, Athens–Sofia, Athens–Bucharest, Athens–Ioannina, Athens–Kavala, Athens–Tirana, Athens–Vienna, Athens–Corfu, Thessaloniki–Chania, Thessaloniki–Herakleion, Thessaloniki–Mytilini, Thessaloniki–Rhodes and Athens–Milan routes were already considered prior to the engagement of the transaction talks. As a result, such withdrawals of operations were not considered as merger specific.

| (38) | Therefore, the Commission did not analyse these routes except for the Athens–Corfu route where it was concluded that the transaction would eliminate potential competition between Aegean and Olympic Air. |
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(38)

Therefore, the Commission did not analyse these routes except for the Athens–Corfu route where it was concluded that the transaction would eliminate potential competition between Aegean and Olympic Air.

2.1.4.   Elimination of actual and potential competition on Greek domestic routes

Actual competition

| (39) | The transaction would lead to a significant impediment to effective competition due to the elimination of actual competition on nine domestic routes: Athens–Thessaloniki, Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos, and Athens–Samos, irrespective of whether different markets are defined for time-sensitive passengers, non-time-sensitive passengers or all passengers (the latter two markets possibly including ferry services (4)). |
| --- | --- |

(39)

The transaction would lead to a significant impediment to effective competition due to the elimination of actual competition on nine domestic routes: Athens–Thessaloniki, Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos, and Athens–Samos, irrespective of whether different markets are defined for time-sensitive passengers, non-time-sensitive passengers or all passengers (the latter two markets possibly including ferry services (4)).

| (40) | Indeed, as concerns time-sensitive passengers for which ferries are clearly not an alternative, the transaction would have created de facto monopoly and eliminate competition between two particularly close competitors on all these routes, except for the Athens–Herakleion route where Sky Express operates a small-scale service. Indeed, Athens Airways ceased its operations in September 2010 and no other scheduled airline is currently active on these Greek domestic routes. Even if Athens Airways were to resume its operations, it is unlikely that it would exert sufficient constraint on the merged entity given the small scale of its operations. This is also true for Sky Express on the Athens–Herakleion route where it currently operates one daily frequency compared to 10 times more by Aegean and Olympic together. |
| --- | --- |

(40)

Indeed, as concerns time-sensitive passengers for which ferries are clearly not an alternative, the transaction would have created de facto monopoly and eliminate competition between two particularly close competitors on all these routes, except for the Athens–Herakleion route where Sky Express operates a small-scale service. Indeed, Athens Airways ceased its operations in September 2010 and no other scheduled airline is currently active on these Greek domestic routes. Even if Athens Airways were to resume its operations, it is unlikely that it would exert sufficient constraint on the merged entity given the small scale of its operations. This is also true for Sky Express on the Athens–Herakleion route where it currently operates one daily frequency compared to 10 times more by Aegean and Olympic together.

| (41) | As regards non-time-sensitive passengers, the Decision distinguishes between the routes where intermodal services are not part of the same market as air services (Athens–Thessaloniki and Athens–Rhodes) and all other routes of concern where the inclusion of ferry services into the same market was left open:






  (a) | as regards the Athens–Thessaloniki and Athens–Rhodes routes, the transaction would lead to combined market shares of 90 % or more and eliminate competition between two particularly close competitors; |
| --- | --- | --- |

(41)

As regards non-time-sensitive passengers, the Decision distinguishes between the routes where intermodal services are not part of the same market as air services (Athens–Thessaloniki and Athens–Rhodes) and all other routes of concern where the inclusion of ferry services into the same market was left open:

(a)

as regards the Athens–Thessaloniki and Athens–Rhodes routes, the transaction would lead to combined market shares of 90 % or more and eliminate competition between two particularly close competitors;

| (b) | as regards Athens–Herakleion, Athens–Chania, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos, the same reasoning applies as in the case of Athens–Thessaloniki and Athens–Rhodes if ferries were not considered part of the same market. If ferries were considered part of the same market, the parties’ market shares (leaving aside Marfin’s subsidiary Attica Group) range between [30-70 %] in the winter season 2009-2010 and between [10-60 %] in part of the summer season 2010 (i.e. April-July 2010). The relevance of market shares as well as competition by ferries is however limited as ferry services exhibit a significant degree of differentiation compared to air services. As a result, it is unlikely that ferries would be in a position to discipline the merged entity’s behaviour, especially concerning fare setting, post transaction. |
| --- | --- |

(b)

as regards Athens–Herakleion, Athens–Chania, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos, the same reasoning applies as in the case of Athens–Thessaloniki and Athens–Rhodes if ferries were not considered part of the same market. If ferries were considered part of the same market, the parties’ market shares (leaving aside Marfin’s subsidiary Attica Group) range between [30-70 %] in the winter season 2009-2010 and between [10-60 %] in part of the summer season 2010 (i.e. April-July 2010). The relevance of market shares as well as competition by ferries is however limited as ferry services exhibit a significant degree of differentiation compared to air services. As a result, it is unlikely that ferries would be in a position to discipline the merged entity’s behaviour, especially concerning fare setting, post transaction.

| (42) | As regards the possible market encompassing all passengers, the conclusions for non-time-sensitive segment are applied mutatis mutandis although the actual market share levels slightly differ. |
| --- | --- |

(42)

As regards the possible market encompassing all passengers, the conclusions for non-time-sensitive segment are applied mutatis mutandis although the actual market share levels slightly differ.

Potential competition

| (43) | The market investigation also showed that the transaction would lead to the elimination of potential competition between Aegean and Olympic Air on the Athens–Corfu route. This is because Aegean and Olympic Air are potential competitors on this route given in particular their base at AIA and the fact the route has historically had sufficient demand to sustain operations of (at least) two carriers. |
| --- | --- |

(43)

The market investigation also showed that the transaction would lead to the elimination of potential competition between Aegean and Olympic Air on the Athens–Corfu route. This is because Aegean and Olympic Air are potential competitors on this route given in particular their base at AIA and the fact the route has historically had sufficient demand to sustain operations of (at least) two carriers.

2.1.5.   Conclusion on the route-by-route assessment

| (44) | The Commission concludes that the transaction would significantly impede effective competition in the internal market or a substantial part thereof within the meaning of Article 2(3) of the Merger Regulation, in particular as the result of the creation of a dominant position as regards the possible markets for time-sensitive passengers on the Athens–Thessaloniki, Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos, and Athens–Samos routes, and on the Athens–Rhodes and Athens–Thessaloniki routes as far as the possible markets for non-time-sensitive passengers and all passengers are concerned. For those markets where ferry services may be part of the relevant market, namely the possible markets for non-time-sensitive passengers and all passengers on the Athens–Herakleion, Athens–Chania, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos routes, it is not necessary to definitively conclude on the creation of a dominant position, given that, even in the absence of the creation of a dominant position, the transaction would in any event significantly impede effective competition in the internal market as a result of the elimination of the particularly close competitive relationship between Aegean and Olympic Air and thus of the important competitive constraints that both airlines exert on each other pre-transaction. |
| --- | --- |

(44)

The Commission concludes that the transaction would significantly impede effective competition in the internal market or a substantial part thereof within the meaning of Article 2(3) of the Merger Regulation, in particular as the result of the creation of a dominant position as regards the possible markets for time-sensitive passengers on the Athens–Thessaloniki, Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos, and Athens–Samos routes, and on the Athens–Rhodes and Athens–Thessaloniki routes as far as the possible markets for non-time-sensitive passengers and all passengers are concerned. For those markets where ferry services may be part of the relevant market, namely the possible markets for non-time-sensitive passengers and all passengers on the Athens–Herakleion, Athens–Chania, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos routes, it is not necessary to definitively conclude on the creation of a dominant position, given that, even in the absence of the creation of a dominant position, the transaction would in any event significantly impede effective competition in the internal market as a result of the elimination of the particularly close competitive relationship between Aegean and Olympic Air and thus of the important competitive constraints that both airlines exert on each other pre-transaction.

| (45) | In addition, the transaction would significantly impede effective competition in the internal market by the elimination of a credible potential entrant on the Athens–Corfu route. |
| --- | --- |

(45)

In addition, the transaction would significantly impede effective competition in the internal market by the elimination of a credible potential entrant on the Athens–Corfu route.

| (46) | In contrast, no competition concerns were found on other domestic and international routes where Aegean and Olympic Air currently compete. This is because on these other routes the merged entity would continue to face sufficient competition post transaction. |
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(46)

In contrast, no competition concerns were found on other domestic and international routes where Aegean and Olympic Air currently compete. This is because on these other routes the merged entity would continue to face sufficient competition post transaction.

2.1.6.   Merger-induced entry in domestic routes is not likely, timely or sufficient

| (47) | The Decision also analysed to which extent any post-transaction entry is likely to constrain the behaviour of the merged entity on the routes where competition between Aegean and Olympic Air would be eliminated or significantly reduced as a result of the transaction. For entry to be considered as a sufficient competitive constraint, it must be shown to be likely, timely and sufficient in order to restore the competitive constraints that Aegean and Olympic Air would continue to exert on each other in the absence of the transaction. |
| --- | --- |

(47)

The Decision also analysed to which extent any post-transaction entry is likely to constrain the behaviour of the merged entity on the routes where competition between Aegean and Olympic Air would be eliminated or significantly reduced as a result of the transaction. For entry to be considered as a sufficient competitive constraint, it must be shown to be likely, timely and sufficient in order to restore the competitive constraints that Aegean and Olympic Air would continue to exert on each other in the absence of the transaction.

| (48) | The market investigation showed that there are a number of important barriers to entry and/or expansion on all Greek domestic routes which altogether make it unlikely that any foreign or domestic competitor would enter the market and exercise credible competitive constraint on the merged entity post transaction. Indeed, to be able to discipline the merged entity's behaviour on Greek domestic routes, it was found that a new entrant would need to have a base at AIA and would need to develop a brand to gain brand awareness similar to the one of Aegean and Olympic Air. Furthermore, new entrant would have to cope with high sunk costs, have access to domestic and international connecting traffic and establish a network of distribution channels in Greece. |
| --- | --- |

(48)

The market investigation showed that there are a number of important barriers to entry and/or expansion on all Greek domestic routes which altogether make it unlikely that any foreign or domestic competitor would enter the market and exercise credible competitive constraint on the merged entity post transaction. Indeed, to be able to discipline the merged entity's behaviour on Greek domestic routes, it was found that a new entrant would need to have a base at AIA and would need to develop a brand to gain brand awareness similar to the one of Aegean and Olympic Air. Furthermore, new entrant would have to cope with high sunk costs, have access to domestic and international connecting traffic and establish a network of distribution channels in Greece.

| (49) | The Commission found that, post transaction, no entry into Greek domestic market would be likely, timely and sufficient to constrain the merged entity. |
| --- | --- |

(49)

The Commission found that, post transaction, no entry into Greek domestic market would be likely, timely and sufficient to constrain the merged entity.

2.2.   Public service obligation (‘PSO’) routes

| (50) | The Decision concludes that it is unlikely that the transaction would lead to a significant impediment of effective competition with respect to the market for the attribution of PSO routes in Greece given that the merged entity would continue to face competition from other established players in this market, namely Sky Express and Astra. |
| --- | --- |

(50)

The Decision concludes that it is unlikely that the transaction would lead to a significant impediment of effective competition with respect to the market for the attribution of PSO routes in Greece given that the merged entity would continue to face competition from other established players in this market, namely Sky Express and Astra.

| (51) | In addition, two airlines, namely Danish Air Transport and Romania's Carpatair, have expressed a clear interest in bidding for Greek PSO routes in the next round of tenders and the market investigation confirmed that in contrast with scheduled operations, airlines can start operations on PSO routes at a relatively small scale. |
| --- | --- |

(51)

In addition, two airlines, namely Danish Air Transport and Romania's Carpatair, have expressed a clear interest in bidding for Greek PSO routes in the next round of tenders and the market investigation confirmed that in contrast with scheduled operations, airlines can start operations on PSO routes at a relatively small scale.

2.3.   Ground handling at Greek airports

| (52) | The Commission analysed both the vertical issue arising from vertical relationship between ground handling market and air transport market as well as the likelihood of post-transaction coordination between Olympic Handling, Goldair (in which Vassilakis has an investment), and independent competitors Swissport International and Swissport Hellas Sud. |
| --- | --- |

(52)

The Commission analysed both the vertical issue arising from vertical relationship between ground handling market and air transport market as well as the likelihood of post-transaction coordination between Olympic Handling, Goldair (in which Vassilakis has an investment), and independent competitors Swissport International and Swissport Hellas Sud.

| (53) | The market investigation revealed that even if the merged entity were to attempt to influence Goldair's behaviour on the market, Swissport would be in a position to undermine any coordination effort. Indeed, Swissport is a strong and credible player on the Greek ground handling market, aggressively gaining market share. |
| --- | --- |

(53)

The market investigation revealed that even if the merged entity were to attempt to influence Goldair's behaviour on the market, Swissport would be in a position to undermine any coordination effort. Indeed, Swissport is a strong and credible player on the Greek ground handling market, aggressively gaining market share.

| (54) | The Commission therefore concluded that the transaction is unlikely to give rise to coordinated effects as the post-merger market structure will not increase incentives of market participants to enter into collusive agreements. As concerns the vertical relationship between ground handling and air transport, the market investigation did not provide indications that that the transaction would give rise to any vertical effects. |
| --- | --- |

(54)

The Commission therefore concluded that the transaction is unlikely to give rise to coordinated effects as the post-merger market structure will not increase incentives of market participants to enter into collusive agreements. As concerns the vertical relationship between ground handling and air transport, the market investigation did not provide indications that that the transaction would give rise to any vertical effects.

| (55) | Therefore, the transaction is not likely to significantly impede effective competition in the market for the provision of ground handling services in Greece. |
| --- | --- |

(55)

Therefore, the transaction is not likely to significantly impede effective competition in the market for the provision of ground handling services in Greece.

2.4.   Other markets

| (56) | Based on the result of the market investigation, the transaction is unlikely to significantly impede effective competition on the market for MRO services and in-flight catering (vertically related to the market for air transport of passengers) and on the market for the supply of airline seats to tour operators where Olympic is present only to a limited extent. |
| --- | --- |

(56)

Based on the result of the market investigation, the transaction is unlikely to significantly impede effective competition on the market for MRO services and in-flight catering (vertically related to the market for air transport of passengers) and on the market for the supply of airline seats to tour operators where Olympic is present only to a limited extent.

VI.   EFFICIENCIES

| (57) | As set out in the Horizontal Merger Guidelines, it is for the parties to demonstrate that the efficiencies put forward counterbalance the anti-competitive effects of a merger. The parties should demonstrate that the three following cumulative conditions are met: (i) the efficiencies will bring benefits to consumers; (ii) the efficiencies are merger specific; and (iii) the efficiencies are verifiable (5). |
| --- | --- |

(57)

As set out in the Horizontal Merger Guidelines, it is for the parties to demonstrate that the efficiencies put forward counterbalance the anti-competitive effects of a merger. The parties should demonstrate that the three following cumulative conditions are met: (i) the efficiencies will bring benefits to consumers; (ii) the efficiencies are merger specific; and (iii) the efficiencies are verifiable (5).

| (58) | The parties have not shown that the above conditions are met in this case. |
| --- | --- |

(58)

The parties have not shown that the above conditions are met in this case.

VII.   ANALYSIS OF THE PARTIES’ FINANCIAL SITUATION

| (59) | The Commission also analysed the overall financial situation of the parties. |
| --- | --- |

(59)

The Commission also analysed the overall financial situation of the parties.

| (60) | The assessment made by the Commission led to the conclusion that the prospects of Aegean are positive, irrespective of the transaction. |
| --- | --- |

(60)

The assessment made by the Commission led to the conclusion that the prospects of Aegean are positive, irrespective of the transaction.

| (61) | As concerns the overall situation of Olympic Air it was found that Olympic Air had been incurring losses. In particular, Olympic Air as a start-up company has been engaging into an aggressive pricing strategy which impacted its revenues. However, the Commission's investigation showed that restructuring measures are under way and Olympic Air's profitability has been steadily improving. |
| --- | --- |

(61)

As concerns the overall situation of Olympic Air it was found that Olympic Air had been incurring losses. In particular, Olympic Air as a start-up company has been engaging into an aggressive pricing strategy which impacted its revenues. However, the Commission's investigation showed that restructuring measures are under way and Olympic Air's profitability has been steadily improving.

| (62) | It is therefore likely that, subject to further restructuring measures, Olympic Air's financial results will further improve in the foreseeable future. Besides, Olympic Air belongs to Marfin and hence its financial situation should be put in context of the broader financial situation of its only parent, Marfin. Given the level of costs linked to a hypothetical exit of Olympic Air out of the market, Marfin has an incentive to either continue to support its subsidiary or to sell it instead of incurring financial losses. |
| --- | --- |

(62)

It is therefore likely that, subject to further restructuring measures, Olympic Air's financial results will further improve in the foreseeable future. Besides, Olympic Air belongs to Marfin and hence its financial situation should be put in context of the broader financial situation of its only parent, Marfin. Given the level of costs linked to a hypothetical exit of Olympic Air out of the market, Marfin has an incentive to either continue to support its subsidiary or to sell it instead of incurring financial losses.

| (63) | While the parties did not request it, the Commission decided to analyse Olympic's situation against the three criteria set out in paragraph 90 of the Horizontal Merger Guidelines (6). In this respect, the market investigation revealed that:






  (a) | it is unlikely that, absent the transaction, Olympic Air would be forced out of the market in the near future; |
| --- | --- | --- |

(63)

While the parties did not request it, the Commission decided to analyse Olympic's situation against the three criteria set out in paragraph 90 of the Horizontal Merger Guidelines (6). In this respect, the market investigation revealed that:

(a)

it is unlikely that, absent the transaction, Olympic Air would be forced out of the market in the near future;

| (b) | less anti-competitive alternatives than the proposed concentration are likely to exist; and |
| --- | --- |

(b)

less anti-competitive alternatives than the proposed concentration are likely to exist; and

| (c) | absent the transaction, the assets of Olympic Air would not inevitably exit the market, in particular as the Olympic brand is a very attractive asset, likely to find a potential buyer which would use it in order to operate flights in the Greek market. |
| --- | --- |

(c)

absent the transaction, the assets of Olympic Air would not inevitably exit the market, in particular as the Olympic brand is a very attractive asset, likely to find a potential buyer which would use it in order to operate flights in the Greek market.

| (64) | The Decision therefore concluded that it cannot be said that the deterioration of the competitive structure that would follow from the transaction would not directly be caused by the transaction. |
| --- | --- |

(64)

The Decision therefore concluded that it cannot be said that the deterioration of the competitive structure that would follow from the transaction would not directly be caused by the transaction.

VIII.   COMMITMENTS

| (65) | In order to address competition concerns identified by the Commission, the parties submitted commitments which were modified at three occasions. All versions of the Commitments submitted by the parties have one common feature; they all mainly consist in the offer to release a number of slots at various Greek airports connecting the routes for which competition concerns were identified. The slot remedies were also accompanied by some ancillary commitments, for instance the offer to new entrants to (a) enter into an interlining agreement (7) with the merged entity on the problematic routes and (b) be hosted in the merged entity’s Frequent Flyer Programme for the identified city pair(s) operated by the new entrant. |
| --- | --- |

(65)

In order to address competition concerns identified by the Commission, the parties submitted commitments which were modified at three occasions. All versions of the Commitments submitted by the parties have one common feature; they all mainly consist in the offer to release a number of slots at various Greek airports connecting the routes for which competition concerns were identified. The slot remedies were also accompanied by some ancillary commitments, for instance the offer to new entrants to (a) enter into an interlining agreement (7) with the merged entity on the problematic routes and (b) be hosted in the merged entity’s Frequent Flyer Programme for the identified city pair(s) operated by the new entrant.

| (66) | The slot commitments foresaw grandfathering rights on the transferred slots to be acquired after utilisation of the slots by the new entrant for [0-6] consecutive IATA seasons (8). The slots transferred would be within the time window of [0-15] minutes from the times requested by the new entrant. |
| --- | --- |

(66)

The slot commitments foresaw grandfathering rights on the transferred slots to be acquired after utilisation of the slots by the new entrant for [0-6] consecutive IATA seasons (8). The slots transferred would be within the time window of [0-15] minutes from the times requested by the new entrant.

| (67) | In addition, the parties offered to give access at non-discriminatory terms to the ground handling and maintenance, repair and overhaul services provided by the merged entity at AIA or at any destination airport for the nine abovementioned routes. |
| --- | --- |

(67)

In addition, the parties offered to give access at non-discriminatory terms to the ground handling and maintenance, repair and overhaul services provided by the merged entity at AIA or at any destination airport for the nine abovementioned routes.

| (68) | The commitments were meant to be in place for (confidential) or until new entrants would acquire on individual routes an aggregate market share of (confidential). |
| --- | --- |

(68)

The commitments were meant to be in place for (confidential) or until new entrants would acquire on individual routes an aggregate market share of (confidential).

| (69) | The Commission conducted two market tests to gather views of the relevant market participants on the effectiveness of the proposed remedies. |
| --- | --- |

(69)

The Commission conducted two market tests to gather views of the relevant market participants on the effectiveness of the proposed remedies.

| (70) | In this case, the main barriers to entry relate neither to the availability of slots, nor to the other features addressed by the ancillary commitments. Indeed, given the absence of airport congestion as concerns most airports in the present case, sufficient slots are available free of charge from the relevant airport authorities. The market test did not reveal any credible entry plans, be it by international or Greek domestic carriers. As a result, no timely, likely and sufficient entry would occur to discipline the merged entity's pricing behaviour post transaction. |
| --- | --- |

(70)

In this case, the main barriers to entry relate neither to the availability of slots, nor to the other features addressed by the ancillary commitments. Indeed, given the absence of airport congestion as concerns most airports in the present case, sufficient slots are available free of charge from the relevant airport authorities. The market test did not reveal any credible entry plans, be it by international or Greek domestic carriers. As a result, no timely, likely and sufficient entry would occur to discipline the merged entity's pricing behaviour post transaction.

| (71) | Similarly to the previous cases, the mitigating factor whereby Greece is subject to a crisis which may have impact on actual entry plans of potential entrants, was taken into account in the assessment. |
| --- | --- |

(71)

Similarly to the previous cases, the mitigating factor whereby Greece is subject to a crisis which may have impact on actual entry plans of potential entrants, was taken into account in the assessment.

IX.   CONCLUSION

| (72) | The notified concentration whereby the Vassilakis Group, Marfin Investment Group, and the Laskaridis Group acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control over a newly merged company, including the businesses of Aegean Airlines SA and of Olympic Air SA, Olympic Handling SA and Olympic Engineering SA, is declared incompatible with the internal market and the EEA Agreement. |
| --- | --- |

(72)

The notified concentration whereby the Vassilakis Group, Marfin Investment Group, and the Laskaridis Group acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control over a newly merged company, including the businesses of Aegean Airlines SA and of Olympic Air SA, Olympic Handling SA and Olympic Engineering SA, is declared incompatible with the internal market and the EEA Agreement.

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(1)  OJ L 24, 29.1.2004, p. 1. With effect from 1 December 2009, the Treaty on the Functioning of the European Union (‘TFEU’) has introduced certain changes, such as the replacement of ‘Community’ by ‘Union’ and ‘common market’ by ‘internal market’. The terminology of the TFEU will be used throughout this Decision.

(2)  It is expected that the merged entity would be a member of Star Alliance.

(3)  The creation of the new Olympic was approved by the European Commission (see cases State aid N 321/08, N 322/08 and N 323/08) on the basis that the undertakings given by the Greek authorities were fully complied with.

(4)  In exception to the above, intermodal means of transport are not in the same market as air services for any category of passengers on the routes Athens–Rhodes (ferry) and Athens–Thessaloniki (train).

(5)  Horizontal Merger Guidelines, paragraph 78.

(6)  According to paragraph 90 of Merger Horizontal Guidelines ‘The Commission considers the following three criteria to be especially relevant for the application of a “failing firm defence”: first, the allegedly failing firm would in the near future be forced out of the market because of financial difficulties if not taken over by another undertaking. Second, there is no less anti-competitive alternative purchase than the notified merger. Third, in the absence of a merger, the assets of the failing firm would inevitably exit the market.’. For the avoidance of doubt, it should be noted that the parties did not invoke the so-called ‘failing firm defence’.

(7)  An interlining agreement is an agreement between two or more airlines under which the contracting airlines accept each other's travel documents (tickets).

(8)  Or for routes that are operated only in the summer season or only in the winter season, after 4 summer/winter seasons.

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V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY

European Commission

| 3.7.2012 | EN | Official Journal of the European Union | C 195/18 |
| --- | --- | --- | --- |

3.7.2012

EN

Official Journal of the European Union

C 195/18

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Notice of the impending expiry of certain anti-dumping measures

2012/C 195/11

1.   As provided for in Article 11(2) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1), the Commission gives notice that, unless a review is initiated in accordance with the following procedure, the anti-dumping measures mentioned below will expire on the date mentioned in the table below.

2.   Procedure

Union producers may lodge a written request for a review. This request must contain sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury.

Should the Commission decide to review the measures concerned, importers, exporters, representatives of the exporting country and Union producers will then be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request.

3.   Time limit

Union producers may submit a written request for a review on the above basis, to reach the European Commission, Directorate-General for Trade (Unit H-1), N-105 4/92, 1049 Brussels, Belgium (2) at any time from the date of the publication of the present notice but no later than three months before the date mentioned in the table below.

4.   This notice is published in accordance with Article 11(2) of Regulation (EC) No 1225/2009.

| Product | Country(ies) of origin or exportation | Measures | Reference | Date of expiry (3) |
| --- | --- | --- | --- | --- |
| Coke of coal in pieces with a diameter of more than 80 mm (coke 80 +) | The People's Republic of China | Anti-dumping duty | Council Regulation (EC) No 239/2008 (OJ L 75, 18.3.2008, p. 22) | 19.3.2013 |

Product

Country(ies) of origin or exportation

Measures

Reference

Date of expiry (3)

Coke of coal in pieces with a diameter of more than 80 mm (coke 80 +)

The People's Republic of China

Anti-dumping duty

Council Regulation (EC) No 239/2008 (OJ L 75, 18.3.2008, p. 22)

19.3.2013

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(1)  OJ L 343, 22.12.2009, p. 51.

(2)  Fax +32 22956505.

(3)  The measure expires at midnight of the day mentioned in this column.

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