Judgment — ECLI:EU:T:2003:343
Date: 2003-12-17
Language of the case: English
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Provisions governing the Institutions;Dominant position
Concepts: Definition of abuse;Examples of abuse;Determining the amount of the fine;Competition rules;Bringing matters before the Commission;Commission;Definition;Geographical market;Product or products constituting a market
Procedure: Action for annulment - unfounded
Origin: United Kingdom

Summary of the Judgment 
1. Commission — Simultaneous voluntary individual resignation of all Commis­
sioners — Inapplicability of Article 201 EC — Application of Article 215 EC — 
Resigned Commissioners remaining in office, with full powers, until their replacement 
(Arts 201 EC and 215 EC) 
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SUMMARY — CASE T-219/99 
2. Competition — Administrative procedure — Examination of complaints — Deter­
mination of priorities by the Commission — Power to give differing degrees of priority 
to complaints — Principle of non-discrimination — Infringement — None 
3. Competition — Dominant position —· Market in question — Determination — 
Criteria — Services provided by travel agents to airlines — Market distinct from 
that of air transport 
(Art. 82 EC) 
4. Competition — Dominant position — Definition — Position held by the undertak­
ing in its capacity as a buyer — Included 
(Art. 82 EC) 
5. Competition — Dominant position — Market in question — Geographical defini­
tion — Criteria 
(Art. 82 EC) 
6. Competition — Dominant position — Conduct on the dominated market having 
effects on a neighbouring market — Application of Article 82 EC — Condition — 
Nexus between the two markets 
(Art. 82 EC) 
7. Competition — Transport — Rules on competition — Air transport — Regulation 
No 3975/87 — Scope — Activities directly relating to the provision of air transport 
services — Service provided by travel agents to airlines — Excluded 
(Council Regulations Nos 17, 141 and 3975/87) 
8. Competition — Dominant position — Abuse — Meaning — Objective concept 
referring to conduct likely to influence the structure of the market and with the effect 
of hindering the maintenance or development of competition — Obligations on 
dominant undertakings 
(Art. 82 EC) 
II - 5918 
BRITISH AIRWAYS v COMMISSION 
9. Competition — Dominant position — Abuse — Quantity rebates — Whether per­
missible — Conditions — System of result bonuses applied by an airline to commis­
sions paid to travel agents — Abusive nature of the system — Criteria for assessment 
(Art. 82 EC) 
10. Competition — Dominant position — Abuse — Meaning — Conduct having either 
the effect or the object of hindering the maintenance or development of competition 
(Art. 82 EC) 
11.Competition — Fines — Amount — Determination — Criteria — Damage caused 
to consumers — Not relevant in relation to abuse of a dominant position 
(Council Regulation No 17, Art. 15(2)) 
1. Commissioners cannot be regarded as 
having been Obliged to resign as a 
body', within the meaning of the last 
sentence of the second paragraph of 
Article 201 EC, unless the Parliament 
has first adopted a motion of censure 
under the conditions defined by the 
same article. In the absence of such a 
motion, individual voluntary resigna­
tions, even if simultaneous, of all the 
Commission's Members constitute a 
scenario outside the provisions of 
Article 201 EC, falling solely under 
Article 215 EC, the simultaneous 
nature of those individual resignations 
not being capable of calling into ques­
tion the voluntary character of each of 
them. 
It follows that, in such a case, the 
resigned Members remain in office 
with full powers until their replace­
ment, since the first paragraph of 
Article 215 EC defines only the legal 
causes of the cessation of Commissio­
ners' duties during their mandate, with­
out thereby wishing to prohibit Com­
missioners who have resigned from 
exercising their normal powers until 
their resignation takes effect on the 
date of their actual replacement. 
(see paras 50-51, 53, 55-56) 
2. For the Commission to be accused of 
discrimination, it must be shown to 
have treated like cases differently, 
thereby subjecting some to disadvan-
II-5919 
SUMMARY — CASE T-219/99 
tages as opposed to others, without 
such differentiation being justified by 
the existence of substantial objective 
differences. 
In particular, in the context of pro­
cedures for applying the competition 
rules, the fact that other traders, in a 
position similar to a trader penalised by 
the Commission and who have acted in 
a similar way, have not been subjected 
to an infringement procedure cannot in 
any event constitute a ground for 
setting aside the finding of an infringe­
ment by the penalised trader, provided 
it was properly established. 
Furthermore, the Commission is 
entitled, in order effectively to ensure 
the application of the Community 
competition rules, to give differing 
degrees of priority to the complaints 
brought before it, by reference to their 
Community interest, measured in 
relation to the circumstances of each 
case and, in particular, to the elements 
of fact and law which are presented to 
it. In that respect, it is required in 
particular to assess the seriousness of 
the alleged restrictions on competition 
and how long ago the complaint was 
brought before it. 
Where the Commission is faced with a 
situation where numerous factors give 
rise to a suspicion of anti-competitive 
conduct on the part of several large 
undertakings in the same economic 
sector, the Commission is even entitled 
to concentrate its efforts on one of the 
undertakings concerned, while inviting 
the economic operators which have 
allegedly suffered damage as a result 
of the possibly anti-competitive con­
duct of the other undertakings to bring 
the matter before the national auth­
orities. 
(see paras 65-66, 68-70) 
3. For the purposes of investigating the 
possibly dominant position of an 
undertaking on a given product mar­
ket, the possibilities of competition 
must be judged in the context of the 
market comprising the totality of the 
products or services which, with 
respect to their characteristics, are 
particularly suitable for satisfying con­
stant needs and are only to a limited 
extent interchangeable with other 
products or services. Moreover, since 
the determination of the relevant mar­
ket is useful in assessing whether the 
undertaking concerned is in a position 
to prevent effective competition from 
being maintained and behave to an 
appreciable extent independently of its 
competitors and service providers, an 
examination to that end cannot be 
limited to the objective characteristics 
only of the relevant services, but the 
II - 5920 
BRITISH AIRWAYS v COMMISSION 
competitive conditions and the struc­
ture of supply and demand on the 
market must also be taken into con­
sideration. 
Therefore, services which airlines buy 
from travel agents for the purposes of 
marketing and distributing their airline 
tickets can constitute a product market 
distinct from that of air transport. 
Although travel agents act on behalf 
of the airlines, which assume all the 
risks and advantages connected with 
the transport service itself and which 
conclude contracts for transport 
directly with travellers, those agents 
nevertheless constitute independent 
intermediaries carrying on an indepen­
dent business of providing services in a 
market for services distinct from that of 
air transport. 
(see paras 91, 93, 100) 
4. The dominant position referred to in 
Article 82 EC relates to a position of 
economic strength enjoyed by an 
undertaking which enables it to prevent 
effective competition being maintained 
on the relevant market by giving it the 
power to behave to an appreciable 
extent independently of its competi­
tors, of its customers and ultimately of 
its consumers. 
An undertaking may hold such a pos­
ition not only in its capacity as a seller 
but also in its capacity as a buyer, since 
Article 82 EC applies both to under­
takings whose possible dominant pos­
ition is established in relation to their 
suppliers and to those which are 
capable of being in the same position 
in relation to their customers. 
(see paras 101, 189) 
5. The geographic market to be taken into 
consideration in order to establish the 
existence of a possible dominant pos­
ition may be defined as the territory in 
which all traders operate in the same or 
sufficiently homogeneous conditions of 
competition in so far as concerns 
specifically the relevant products or 
services, without it being necessary for 
those conditions to be perfectly homo­
geneous. 
(see para. 108) 
II - 5921 
SUMMARY — CASE T-219/99 
6. An abuse of a dominant position com­
mitted on the dominated product mar­
ket, but the effects of which are felt in a 
separate market on which the under­
taking concerned does not hold a 
dominant position may fall within 
Article 82 EC provided that separate 
market is sufficiently closely connected 
to the first. 
Such a connection may exist, for 
example, between, on the one hand, 
travel agency services supplied to air­
lines and, on the other, air transport 
services provided by those airlines in 
relation to the services sold to travellers 
through the intermediary of travel 
agents. 
(see paras 127, 130, 132) 
7. Regulation No 3975/87 laying down 
the procedure for the application of the 
rules on competition to undertakings in 
the air transport sector, being of a 
specific nature, applies only to activ­
ities directly relating to the provision of 
air transport services and therefore 
precludes application of Regulation 
No 17 only in so far as those services 
are concerned. 
In that regard, agreements between an 
airline and travel agents for the supply 
to that airline of those agents' services 
and, in particular, the distribution of 
tickets, are not to be regarded as 
directly related to air transport service 
proper and therefore do not fall within 
the scope of Regulation No 3975/87. 
(see paras 164-165) 
8. 'Abuse' is an objective concept refer­
ring to the conduct of an undertaking 
in a dominant position which is such as 
to influence the structure of a market 
where, as a result of the very presence 
of the undertaking in question, the 
degree of competition is already 
weakened and which, through recourse 
to methods different from those gov­
erning normal competition in products 
or services on the basis of the trans­
actions of commercial operators, has 
the effect of hindering the maintenance 
of the degree of competition still exist­
ing in the market or the growth of that 
competition. 
Therefore, whilst the finding that a 
dominant position exists does not in 
itself imply any reproach to the under­
taking concerned, the latter has a 
special responsibility, irrespective of 
the causes of that position, not to allow 
its conduct to impair genuine undis-
torted competition on the common 
market. Similarly, whilst the fact that 
II - 5922 
BRITISH AIRWAYS v COMMISSION 
an undertaking is in a dominant pos­
ition cannot deprive it of its entitlement 
to protect its own commercial interests 
when they are attacked, and whilst 
such an undertaking must be allowed 
the right to take such reasonable steps 
as it deems appropriate to protect those 
interests, such behaviour cannot be 
allowed if its purpose is to strengthen 
that dominant position and thereby 
abuse it. 
(see paras 241-243) 
9. Rebate systems which have the effect of 
preventing customers from obtaining 
supplies from market competitors are 
contrary to Article 82 EC if they are 
applied by an undertaking in a domi­
nant position. 
Therefore, quantitative rebate schemes 
linked exclusively to the volume of 
purchases made from a dominant pro­
ducer, even if they do not generally 
have the effect of preventing customers 
from obtaining supplies from competi­
tors, but of lawfully allowing cus­
tomers to benefit from the reduction 
in production costs, are contrary to 
Article 82 EC if the criteria and rules 
for granting the rebate show that the 
system is not based upon an economi­
cally justified consideration but tends, 
like a fidelity and objective rebate, to 
prevent customers obtaining supplies 
from rival producers. 
That will be the case with a system of 
result bonuses applied by an airline in a 
dominant position to commissions paid 
to travel agents for the sale of its tickets 
where those bonuses are calculated in 
accordance with a progressive scale 
capable of rising exponentially by ref­
erence to the increase in tickets sold 
and are applied to commissions relat­
ing not only to tickets sold after the 
attainment of a certain sales objective, 
but to all those sold during a reference 
period. Such a rebate system is not 
based on a justified economic consider­
ation and has the effect of restricting 
both the freedom of those agents to 
supply their services to the airlines of 
their choice and the access of those 
airlines to the market for those agency 
services. 
(see paras 245-247, 272, 282) 
10. For the purposes of establishing an 
infringement of Article 82 EC, it is not 
necessary to demonstrate that abusive 
II - 5923 
SUMMARY — CASE T-219/99 
conduct of the undertaking in a domi­
nant position had a concrete anti-com­
petitive effect on the markets con­
cerned. It is sufficient in that respect 
to demonstrate that it tends to restrict 
competition, or, in other words, that 
the conduct is capable of having, or 
likely to have, such an effect. There­
fore, where an undertaking in a domi­
nant position actually puts into oper­
ation a practice generating the effect of 
ousting its competitors, the fact that 
the hoped-for result is not achieved is 
not sufficient to prevent a finding of 
abuse of a dominant position within 
the meaning of Article 82 EC. 
(see paras 293-294, 297) 
11. Since Article 82 EC is aimed at penalis­
ing even an objective detriment to the 
structure of competition itself, an 
undertaking cannot challenge the 
amount of the fine imposed by arguing 
that there has been no proof of damage 
caused to consumers. 
(see para. 311) 
II - 5924