Judgment — ECLI:EU:T:2018:269
Date: 2018-05-16
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Competition
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Germany

summary, in recitals 27 and 29 of the contested decision, does not accurately reflect the Opinions of the Trustee as lodged by the Commission as annexes to the defence. First, contrary to what is stated in recital 27 of the contested decision, the Trustee, in his Opinion of 27 June 2014, did not consider that the question whether the substantial market change arising from termination of the JV Agreement between Lufthansa and SAS concerning the ZRH-STO route would justify a waiver of the commitments exceeded his mandate. Rather, he considered that it was the question whether the Commission had, in the 2005 Decision, based its appraisal in respect of the relationship between Lufthansa and LOT on its legal practice at the time or on an assumption, as regards the ZRH-WAW route, which would go beyond that mandate. Second, whilst, according to recital 29 of the contested decision, on 3 May 2016, the Trustee amended his initial Opinion and stated that he had not become aware of any exceptional circumstances within the meaning of review clause 15.1 on either the ZRH-STO or the ZRH-WAW routes, it should be pointed out that the document of 3 May 2016 comprised not the Trustee’s second Opinion but answers to a series of questions relating to review clause 15.1 and not to review clause 15.2. On the contrary, in his second Opinion, which is dated 13 April 2016, the Trustee –– as the Commission has expressly stated in its defence –– essentially reiterated the previous conclusions of 27 June 2014 and clarified that business tariffs on the two routes had also fallen significantly after the introduction of new tariffs. Nor did the Commission examine in the contested decision the significance and impact of termination of the JV Agreement, although it was a key element of the cooperation between Swiss and SAS. 67 In recital 43 of the contested decision, it is stated in that regard that, as the assessment in the 2005 decision is based not only on the JV Agreement but also on a comprehensive evaluation of the cooperation between Lufthansa and SAS, and as the 1995 Bilateral Alliance Agreement making that cooperation possible is still in place, the mere termination of the JV Agreement for traffic between Germany and Scandinavia does not justify a conclusion that the current contractual relationships between the two undertakings have changed in such a material respect as to remove the concerns set out in the 2005 Decision for the ZRH-STO route. The continuation of the 1995 Bilateral Alliance Agreement thus appears to be the reason for rejecting the waiver request. 68 Recital 48 of the contested decision further explains in this regard that, since the 1995 Bilateral Alliance Agreement provides the basis for all other bilateral agreements between the two companies, its termination, seen in conjunction with the termination of the JV Agreement, in principle might amount to a material change in the contractual relationship assessed in the 2005 Decision. 69 As is expressly stated in recitals 4, 32 and 47 of the contested decision, Lufthansa offered, in the course of the administrative procedure, to terminate the Bilateral Alliance Agreement if that would allow the Commission to grant the waiver request on the ZRH-STO route. 70 The Commission, therefore, could not legitimately consider, in recital 43 of the contested decision, that termination of the JV Agreement did not justify a conclusion that the contractual relationships had changed in a material respect owing to the fact that the Bilateral Alliance Agreement was still in place. 71 The Commission argues in this regard that the Bilateral Alliance Agreement was never terminated and that Lufthansa’s suggestion that the agreement could be terminated never amounted to a formal commitment. It therefore takes the view that the contested decision could not have been based on Lufthansa’s non-binding oral suggestion that it might terminate the Bilateral Alliance Agreement. 72 That argument cannot be accepted. As the applicant has argued and as is clear from recitals 4, 32 and 47 of the contested decision, the latter is based on the assumption that Lufthansa would terminate that agreement, if that were sufficient for the Commission to waive the fare commitments. Furthermore, it was for the Commission, should it have considered it necessary, to ask Lufthansa, in the administrative procedure, to give concrete expression to that commitment on such terms as the Commission deemed appropriate. 73 It follows that, in failing to examine the impact of termination of the JV Agreement, either on its own or in conjunction with the undertaking also to terminate the Bilateral Alliance Agreement, the Commission did not take into account all the relevant elements for the assessment of the waiver request based on a change in the contractual relationships between Lufthansa and SAS. 74 The point should be made, however, that, according to other recitals of the contested decision, rejection of the request is based on reasons other than the fact that the Bilateral Alliance Agreement was not actually terminated. 75 Thus, in the conclusion of the part of the contested decision that deals with contractual changes (recitals 68 to 70), the Commission, after noting that it was not sufficient to terminate the JV Agreement, stated that ‘there [had been] no change in the competitive conditions on the ZRH-WAW route where the cooperation between Lufthansa and LOT seem[ed] to have been much lighter than on the ZRH-STO route’, on the basis of which it concluded, in turn, that the fare commitments on the ZRH-WAW route should be maintained and, consequently, that those on the ZRH-STO route should be maintained as well. That ground of justification must be rejected because it is advanced on the basis of merely hypothetical considerations, is not supported by any concrete examination of the relevant information relating to each of the routes and is based on a somewhat circular argument inasmuch as the comparison between the two routes justifies the rejection of the request for the first route, which in turn justifies the rejection of the request for the second route. Moreover, the Commission stated, in recital 68 of the contested decision, that the lack of entry of a new carrier could in itself also be seen as justifying the maintenance of the fare commitments on the ZRH-STO route and the ZRH-WAW route. The last-mentioned ground of justification is incorrect. The entry of a new carrier on the ZRH-STO route or the ZRH-WAW route is not a precondition for waiver of the commitments under the review clauses; rather it is a separate, additional ground, which automatically terminates the fare commitments under Clause 11.1 of the commitments. 76 It follows, however, from recitals 49, 70, 95 and 112 of the contested decision that the Commission took the view that the termination of the JV Agreement and the offer also to terminate the Bilateral Alliance Agreement were not sufficient owing, in particular, to the fact that the codeshare agreement had been concluded between Swiss and SAS in 2006. Furthermore, according to recital 95 of the contested decision, ‘even if the conditions for requesting a waiver of the commitments in the two routes were considered fulfilled’, account would still have to be taken, in the assessment of the waiver request, of the introduction of that codeshare agreement. The importance that the Commission attached to that agreement can be seen, lastly, from recitals 5 and 104 of the contested decision. Those recitals state that, on 5 March 2015, the Commission informed the applicant that the waiver could be granted if it made certain amendments to the codeshare agreement between Swiss and SAS –– namely limiting its scope to connecting passengers: that proposal was not subject to any reservation or conditional upon the Bilateral Alliance Agreement being terminated or an investigation being carried out. 77 Although the reasoning in the contested decision is at the least confused, consideration should nonetheless be given to whether the Commission was entitled to conclude that the termination of the JV Agreement in conjunction with the offer to terminate the Bilateral Alliance Agreement was not sufficient to grant the waiver request on account of the codeshare agreement that Swiss had entered into with SAS in 2006. 78 The applicant advances two sets of arguments on this point, the first concerning the Commission’s assessment of the same agreements in the Lufthansa/Brussels Airlines Decision and an alleged change of policy with regard to the treatment of alliance partners and the second concerning the codeshare agreement entered into between Swiss and SAS. – The Lufthansa/Brussels Airlines Decision and the alleged change in the Commission’s policy with regard to the treatment of alliance partners 79 The applicant complains that the Commission ignored its own assessment of the same agreements concluded by Lufthansa with SAS (and other Star Alliance partners) in the Lufthansa/Brussels Airlines Decision. The applicant maintains, more generally, that, since the Lufthansa/Brussels Airlines Decision, the Commission has changed its policy with respect to the treatment of alliance partners, with the result that, if the Lufthansa/Swiss merger were notified today, the ZRH-STO and ZRH-WAW routes would not be considered to be affected markets and the commitments would not be necessary to obtain authorisation for the transaction. 80 It should be pointed out that the complaints set out in paragraph 79 above, unlike the complaints relating to contractual changes in the strict sense and to the codeshare agreement between Swiss and SAS, have been put forward by the applicant in order to challenge the Commission’s assessment both with regard to the ZRH-STO route and with regard to the ZRH-WAW route. 81 The Commission submits, first, that every concentration is assessed individually in the light of the factual and legal circumstances specific to that transaction. The applicant cannot therefore rely on alleged differences in the Commission’s assessment by comparison with other cases. 82 The Commission further submits that the contested decision is not at odds with the assessment made in the Lufthansa/Brussels Airlines Decision and that its approach regarding the assessment of relationships between the parties to a merger and third parties in the aviation sector has not materially changed since the 2005 Decision was adopted. In any event, there can, in its view, be no question of a long-term market evolution or –– a fortiori –– a change in the underlying agreements between Lufthansa and its alliance partners. 83 In that regard, it is necessary to start by recalling that, according to settled case-law, when the Commission takes a decision on the compatibility of a concentration with the internal market on the basis of a notification and a file pertaining to that transaction, an applicant is not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case, on the basis of a different notification and a different file, even where the markets at issue in the two cases are similar, or even identical (judgments of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 118, and of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 142). In accordance with that case-law neither the Commission nor, a fortiori, the General Court is bound by the findings of fact and the economic assessments made in previous decisions. 84 However, in the present case the applicant’s argument cannot be rejected on the basis of the case-law cited in paragraph 83 above. 85 First, the applicant does not invoke a mere difference of assessment as between the contested decision and another decision, but rather a change of policy inasmuch as it is alleged that the Commission no longer takes into account alliance partners in the determination of affected markets. 86 Second, the applicant relies on the analysis of the same agreements between the same parties, in the same context and on the same issue, which the Commission carried out in the Lufthansa/Brussels Airlines Decision, of which the applicant was also an addressee. 87 Although a possible difference in the analysis in the Lufthansa/Brussels Airlines Decision and that of the contested decision, or an alleged change in the Commission’s policy, do not in themselves give grounds for a finding of illegality in respect of the contested decision, they do, however, require it to be ascertained whether, at the very least, the Commission carried out a thorough examination of the applicant’s argument that alliance partners are no longer taken into account in the determination of affected markets. 88 In addition, as has been explained in paragraph 13 above, the assessment made in the Lufthansa/Brussels Airlines Decision and the change in the Commission’s policy with respect to the treatment of alliance partners were, specifically, one of the three grounds –– together with the termination of the JV Agreement and the existence of competition between Swiss and SAS/LOT –– on which the waiver request was based. It is apparent from the documents before the Court that the question was, moreover, central to discussions throughout the administrative procedure. 89 It should also be observed that the alleged change in the Commission’s policy with respect to alliance partners was examined in an entire section of the contested decision (recitals 71 to 83) and that the reasoning in that decision is based, inter alia, on that evaluation, which may therefore be challenged by the applicant. 90 Accordingly, the applicant’s argument concerning the Lufthansa/Brussels Airlines Decision and the subsequent change in the Commission’s policy with regard to alliance partners cannot be rejected on the ground that previous decisions do not form the relevant legal framework. Consequently, the argument must be examined. 91 In the first place, the Court notes in this regard that the Commission fails in the contested decision to answer the argument concerning the Lufthansa/Brussels Airlines Decision, even though that argument is set out in recitals 73 and 74 of the contested decision. That omission is particularly significant given that it relates to a matter forming one of the main grounds for the waiver request and that, in its letter of 20 November 2015, the applicant pointed to the obvious importance of a (re)evaluation by the Commission of the agreements concluded by Lufthansa with SAS and LOT that had been examined in the Lufthansa/Brussels Airlines Decision. 92 Similarly, the matters raised by the Commission in its written submissions before the Court do not explain the difference in assessment between the contested decision and the Lufthansa/Brussels Airlines Decision, as those matters in fact arise in both cases. 93 The Commission merely asserts that, in the Lufthansa/Brussels Airlines Decision, it concluded that no merger-specific spillover effects would be expected because Lufthansa’s cooperation agreements with, inter alia, SAS and LOT were likely not to be extended to the other merging party. However, as the applicant points out, the same is true of the present case, since it concerns the same cooperation agreements with the same parties and since it is undisputed that those agreements do not contain a clause providing for automatic extension without renegotiation and since the cooperation agreements between Lufthansa and SAS/LOT have not in fact been extended to Swiss. The Commission reiterates that it considered that Swiss would become a subsidiary of Lufthansa and would join the Star Alliance. On that point too, there is barely any difference, as Brussels Airlines also because a subsidiary of Lufthansa and joined the Star Alliance. 94 In the second place, so far as concerns the change of policy with regard to the treatment of alliance partners, the Commission refers, in the contested decision, to the IAG/bmi Decision to show that it did not exclude, as a matter of principle, from its purview either the relationships between alliance partners or the impact of those relationships on those partners’ incentive to compete with one another after the merger. 95 However, as the applicant submits, the Commission had expressly stated, in recital 160 of the IAG/bmi Decision, that ‘in line with the Commission’s earlier decisions, IAG’s alliance partners [had] not [been] considered for the determination of affected markets’. 96 The Commission also argues in the contested decision and in its pleadings before the Court that, in the IAG/bmi Decision, existing codeshare relationships between one of the parties and third parties were taken into account in the assessment of competition. However, as the applicant has submitted and the Commission has acknowledged in its pleadings before the Court, the relevant overlap in that case in fact concerned the parties to the merger themselves, namely bmi and British Airways (the latter in its capacity as a marketing carrier selling tickets on Royal Jordanian’s flights) and not bmi and Royal Jordanian (which was British Airways alliance partner). As the applicant submits, the IAG/bmi Decision represents a standard merger analysis rather than an application of the line of analysis developed in the 2005 Decision, according to which independent alliance partners must be taken into account in market definition. 97 Moreover, the applicant –– during the administrative procedure and before the Court –– drew attention to the fact that in Commission Decision C(2009) 6690 final of 28 August 2009 declaring a concentration to be compatible with the common market and the EEA Agreement (Case No COMP/M.5440 — Lufthansa/Austrian Airlines), the Commission had taken the same approach as in the Lufthansa/Brussels Airlines Decision and had thus not examined route overlaps that resulted solely from overlaps between flights operated by Austrian Airlines and flights operated by Star Alliance partners, including LOT and SAS. Similarly, so the applicant argues, in Decision C(2010) 5008 of 14 July 2010 (Case No COMP/M.5747 — Iberia/British Airways), the Commission did not examine route overlaps that resulted solely from flights operated by Iberia and British Airways’ alliance partners. The Court finds that no answer has been provided by the Commission in this regard, either in the contested decision, which nevertheless sets out the applicant’s argument, or in the Commission’s pleadings before the Court. – The codeshare agreement between Swiss and SAS 98 As a preliminary point, the Court notes that, although Swiss concluded codeshare agreements with both SAS (2006) and LOT (2007), the applicant has, in its application, expressly contested only the Commission’s assessment on this matter with regard to the ZRH-STO route and has not raised a complaint about the assessment of the codeshare agreement between Swiss and LOT concerning the ZRH-WAW route. 99 The codeshare agreement between Swiss and SAS was entered into in 2006. Thus, in the 2005 Decision rendering the commitments binding, the Commission did not take that agreement into account in reaching the view that, in the light of the various cooperation agreements between Lufthansa and SAS, the latter had little incentive to compete with Swiss after the merger. 100 Contrary to the applicant’s submission, that fact alone does not give grounds for holding that the codeshare agreement between Swiss and SAS cannot be taken into account in the examination of the waiver request. 101 It is true that review clause 15.2 refers to a change in the agreements underlying the Commission’s finding of reduced incentives for competition. However, the codeshare agreement in the present case might nonetheless be relevant for the overall assessment of whether the contractual relationships have changed in such a respect as to remove the competition concerns that were identified in the 2005 Decision and justified the commitments. 102 A purely formal reading of review clause 15.2, whereby account is taken only of modifications of the agreements that existed at the time of adoption of the 2005 Decision, would in fact amount, as is explained in recital 103 of the contested decision, to allowing the parties to circumvent the commitments by replacing the old cooperation agreements with new cooperation agreements. 103 Consideration should therefore be given to whether the codeshare agreement between Swiss and SAS has sufficiently close links with the contractual relationships and competition problems addressed in the 2005 Decision. 104 The Court notes in that regard that, as the applicant maintains and the Commission acknowledges, the codeshare agreement and the cooperation agreements are different in scope, content and contracting parties. 105 Thus, the Bilateral Alliance Agreement between Lufthansa and SAS covers cooperation between those two airlines as they existed at the time and does not include future affiliates, such as Swiss, whilst the codeshare agreement was concluded in 2006 between Swiss and SAS and covers only the routes operated by Swiss and SAS, and not the routes operated by Lufthansa. 106 The purpose of the Bilateral Alliance Agreement and that of the codeshare agreement are also fundamentally different. As was explained in recital 22 of the 2005 Decision, the cooperation agreements concluded by Lufthansa –– and, amongst those, in particular the Bilateral Alliance Agreement which provided the basis for the cooperation –– provided for a ‘global joint pricing policy, joint network and flight planning, a joint hub system organisation and a single market[ing] strategy’ and ‘thus provide[d] the legal basis for a global integration of the companies’ networks and commercial policies’. By contrast, the codeshare agreement is a standard air-transport industry agreement under which Swiss, in addition to selling tickets on Swiss-operated flights, can also sell tickets under its own designator (that is to say, as ‘marketing carrier’) on flights operated by SAS, and vice versa. 107 As the applicant maintains, without being contradicted by the Commission, there is thus no ‘joint pricing’ under the codeshare agreement. There is likewise no ‘joint network and flight planning’ under that agreement –– each carrier is free to schedule its own flights. The codeshare agreement makes no provision for ‘joint hub system organisation’ –– each carrier operates its own hub according to its own priorities. Lastly, there is no ‘single marketing strategy’ under the codeshare agreement –– each carrier sells its own tickets through its own channels. 108 The Commission nevertheless submits that the codeshare agreement and the Bilateral Alliance Agreement both form an integral part of the broader contractual relationship underlying the assessment of the ZRH-STO route and are therefore relevant for the applicability of review clause 15.2. 109 Assuming that the codeshare agreement may be considered relevant for the applicability of review clause 15.2, it remains necessary to verify whether that agreement is such as to establish that SAS cannot be regarded as a competitor of Swiss or, at the least, to restrict competition between Swiss and SAS. 110 The Court notes in that regard that the Commission, in the contested decision, does not undertake a concrete analysis of the codeshare agreement and does not even mention elements that might establish that that agreement restricted competition between Swiss and SAS, but limits itself to hypothetical considerations. Thus recital 99 of the contested decision states: ‘As to the possible impact of such codeshare agreements on competition on each of the two routes, the Commission considers that these existing codeshare agreements are relevant for the assessment of the merger. Should a similar transaction be notified today, the codeshare agreements between Swiss, SAS and LOT may raise competition concerns and the parties may have to offer commitments to remove those concerns …’ 111 Before the Court, the Commission asserts that the set-up of codeshare agreements shows that, in general, the parties exert a limited competitive constraint on each other. It maintains in that regard that, in parallel codeshare agreements, such as in the present case, the two code-sharing airlines are unlikely to accept that one of them sells codeshare seats on the other one’s flights at lower fares, in view of the reduction in revenue that would result. 112 The Court finds that, again, those matters are purely speculative and are not the result of a specific analysis of the codeshare agreement in the present case and its effects. Furthermore, as the Commission acknowledges, Swiss and SAS have agreed to accept bookings taken by the other party and the fares charged by the other party for those bookings. Similarly, the applicant submits on this point, without being contradicted by the Commission, that operating carriers frequently offer lower fares for their own-operated flights than they offer for flights operated by the codeshare partner, as they bear the risk of unsold seats, whereas the marketing carrier gains at best a small commission from selling a seat on another carrier’s flight. 113 It should further be noted that the matters put forward by the Commission, even if established, are in any event only capable of showing that there is a low level of competition between the marketing carrier and the operating carrier, but not that the effect of the codeshare agreement is to restrict competition between the two companies for flights that they operate themselves. In other words, although the codeshare agreement perhaps gives rise to only a low level of competition for the sale of codeshare tickets, the Commission has, however, put forward nothing that can establish that the effect of that agreement is to reduce competition between the flights operated by each of the two companies. Even though the Commission claims to have found that the prices offered by the operating carrier were almost identical to prices offered by the marketing carrier for codeshare seats on the same flight, the applicant relies, without being contradicted, on price differentiation among flights operated by different carriers on the same day. It is the competition between the flights operated by Swiss and SAS respectively which is more significant in the assessment of whether there is competition between the two airlines. 114 Lastly, the Commission accepted, before the Court, that it had not evaluated in detail the impact of the codeshare agreement between Swiss and SAS on competition between these two companies on the ZRH-STO route. The Commission contends, in that regard, that it was not obliged to examine the matters put forward by the applicant on the ground that the latter had not proved that contractual relationships had changed in such a way as to remove the competition concerns identified in the 2005 Decision. However, an examination of the impact of the codeshare agreement on competition on the route in question was needed precisely to determine whether, and to what extent, that agreement was liable to restrict or remove competition between Swiss and SAS. 115 It follows from the foregoing that, although the codeshare agreement may certainly be taken into account, neither the elements identified in the contested decision, nor even the arguments put forward by the Commission in its pleadings before the Court, justify rejection of the waiver request, so far as concerns the fare commitments relating to the ZRH-STO route. Third part, alleging that the Commission failed to take account of the fact that competition between Swiss and SAS/LOT constitutes ‘long-term market evolution’ within the meaning of the first sentence of review clause 15.2 116 The applicant takes issue with the Commission for having failed to consider whether evidence of continued competition between Swiss and SAS/LOT establishes ‘long-term market evolution’, when that is specifically mentioned as a ground for waiver in the first sentence of review clause 15.2. 117 The applicant submits in this regard that prices on the ZRH-STO and ZRH-WAW routes are significantly lower than those charged in 2005, that passenger numbers on those routes have doubled and that the parties presented evidence that Swiss’s prices for Swiss-operated flights are different from those charged by LOT for seats on LOT-operated flights. 118 As a preliminary point, it should be noted (i) that ‘long-term market evolution’ is a separate ground for waiver, which is specifically mentioned in the first sentence of review clause 15.2, and (ii) that the Commission does not deny that competition between Swiss and SAS/LOT may be regarded as long-term market evolution. That being so, this argument was wrongly rejected, in recital 53 of the contested decision, on the ground that ‘given that the preconditions for granting the waiver request are not met, the question of price developments does not need to be discussed in this Decision’. That error is, however, irrelevant since, in recitals 54 to 59 of the contested decision, price developments and the degree of competition were nevertheless discussed ‘for the sake of completeness’. 119 In that regard, whilst admitting that the graphs provided by the applicant and Swiss do in fact appear to indicate a certain degree of price differentiation among flights operated by different carriers on the same day, the Commission took the view, in the contested decision, that it nevertheless remained unclear how reliable that analysis was and that further analysis would therefore have to be carried out. 120 As the Commission has argued, it is indeed for the merged entity requesting a waiver of commitments to provide evidence showing that the conditions for waiving the commitments are fulfilled and the Commission cannot be required to carry out a new market investigation for each waiver request. However, the Commission has investigating powers and effective investigative tools and, if it considered that the evidence put forward by the parties was not sufficiently reliable or relevant or that it needed to be supplemented by other information, it was its responsibility to require more specific information or to carry out an investigation in that regard. That is a fortiori the case given that, in its response of 20 November 2015, Lufthansa had already stressed that the Commission could not simply content itself with claiming that ‘the actual degree of price competition on the two routes … can be left open’. 121 The parties, relying on the Trustee’s conclusions, also argued that the doubling in the number of passengers and the very significant reduction in fares between 2005 and 2014 were evidence of the high level of competition between Swiss and LOT/SAS. 122 In the contested decision, the Commission merely stated in that regard that the parties had not adduced any compelling evidence that those price reductions had been caused by competition between Swiss and LOT and that they could also be attributed to the decline in fuel prices or to the effect of the fare commitments. 123 As has been stated above, the Commission cannot limit itself to demanding compelling evidence –– without, moreover, specifying what that evidence should consist in –– but must establish the inaccuracy of the evidence put forward by the parties, make enquiries or conduct, if necessary, an investigation in order to supplement that evidence or show that it is not conclusive. 124 It should also be noted that the Commission confirmed at the hearing that it was not disputing the applicant’s claim that 17 out of 32 fare reductions on the ZRH-STO route and 4 out of 13 such reductions on the ZRH-WAW route were voluntary, that is to say, not required by the remedies. 125 It follows from the foregoing that the Commission failed to fulfil its duty carefully to examine all the relevant information, to make enquiries or to conduct the necessary investigations in order to determine whether there was competition between Swiss and SAS/LOT. Fifth part, alleging failure to comply with the general merger policy with regard to pricing remedies 126 The applicant maintains that the Commission has ignored the fact that fare commitments are incompatible with its remedies policy as set out in paragraph 18 of the Remedies Notice and confirmed by its practice. It observes that in recent years, moreover, the Commission has routinely rejected fare commitments proposed by the parties. 127 The applicant explains that fare commitments have a potentially twofold distortive effect on competition: first, passengers on benchmark routes are deprived of the benefits of price reductions that Swiss might consider were it not for the additional costs caused by the corresponding price reductions required on the overlap routes, and, second, artificially lower fares on the overlap routes may prevent market entry by a competing airline. 128 The applicant takes issue with the Commission for not evaluating those points but merely noting that the ZRH-STO and ZRH-WAW routes were low-traffic (‘thin’) routes which no airline had entered in spite of the slot remedies. 129 In that regard, concerning, first, the argument that fare commitments are incompatible with the Commission’s remedies policy, the Court reiterates at the outset that the applicant cannot, in the context of these proceedings, challenge the legality of commitments rendered binding by the 2005 Decision, which has become final. 130 Next, as the Commission correctly observes, the Remedies Notice does not exclude fare commitments but points out that such commitments will generally not eliminate competition concerns resulting from horizontal overlaps and that those types of remedies can only exceptionally be accepted if they are supplemented with effective implementation and monitoring mechanisms and if they do not risk leading to distorting effects on competition. 131 Finally, since all concentrations are assessed individually and in the light of the applicable factual and legal circumstances (see, to that effect, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraphs 142 and 144), the fact that commitments have been refused in some, or even most, cases does not prevent them being accepted in a particular situation provided that they serve to resolve the competition problems identified. 132 As regards, secondly, the argument that the fare commitments are liable to create distortions both on the benchmark routes and on the overlap routes, the Court finds that the Commission has put forward nothing capable of refuting that argument, either in the contested decision or before the Court, merely contending that it is speculative. Furthermore, the obligation to pass on to the ZRH-STO and ZRH-WAW routes fare reductions introduced on the benchmark routes could deter third-party airlines from operating on those routes. Far from resolving the market’s structural problem which they are supposed to address, the fare commitments might thus instead make their indefinite continuation necessary. 133 However, it is not a question in the present case of assessing the legality of the commitments rendered binding by the 2005 Decision, which has become final, but rather of determining whether the conditions for waiving those commitments are fulfilled. 134 In that regard, the argument concerning distortion of competition, if made out, cannot be taken to entail a substantial market change for the purposes of the first sentence of review clause 15.2, or a change in contractual relationships for the purposes of the second sentence of review clause 15.2, and, more generally, does not establish that the competition problems identified in the 2005 Decision, which underpin the commitments, no longer exist. 135 Nonetheless, although the argument concerning the risk of distortion of competition does not establish that the conditions laid down by review clause 15.2 for a waiver of the commitments are fulfilled, it does, on the other hand, heighten the need for the Commission to undertake a careful and thorough examination of the waiver request and to determine whether the commitments continue to be necessary or appropriate. Conclusion concerning the first plea 136 It follows from the foregoing that the Commission has not taken into account or carefully examined the arguments concerning the Lufthansa/Brussels Airlines Decision, a change of policy with regard to alliance partners and the existence of competition between Swiss and SAS/LOT. 137 However regrettable those failures may be, they nonetheless cannot be considered sufficient –– in the absence of any change in the contractual relationships between Swiss and LOT, in the light of which the fare commitments were made binding by the 2005 Decision –– to cause the contested decision to be annulled so far as the ZRH-WAW route is concerned. 138 As regards the ZRH-STO route, attention must be drawn not only to the failure to carry out a proper examination of the matters mentioned in paragraph 136 and the termination of the JV Agreement between Lufthansa and SAS, but also to the fact that the Commission (i) did not take into account either the applicant’s undertaking also to terminate the Bilateral Alliance Agreement between Lufthansa and SAS or the Trustee’s Opinion concluding that there was a substantial market change on the ZRH-STO route and (ii) did not undertake an adequate analysis of the impact of the codeshare agreement on competition between Swiss and SAS. Consequently, it must be found that the Commission made a manifest error of assessment inasmuch as it failed to take into account all the relevant information and that the matters relied on in the contested decision are not capable of justifying the rejection of the waiver request relating to the ZRH-STO route (see, to that effect, judgment of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 39). 139 Accordingly, the contested decision must be annulled in so far as it concerns the ZRH-STO route and there is no need to consider the other pleas and arguments put forward by the applicant. However, those other pleas and arguments must be examined in so far as they relate to the legality of the contested decision as regards the ZRH-WAW route. Second plea: alleging breach of the principle of good administration 140 The applicant maintains that the Commission has breached its duty to examine carefully and impartially all relevant elements of the case and has therefore breached the principle of good administration referred to in Article 41(1) of the Charter of Fundamental Rights of the European Union. 141 The applicant argues in this regard that the Commission ignored the legal arguments that it put forward and resorted to assumptions and speculation concerning competition on the routes concerned rather than conducting a serious investigation of the facts. In addition, the Commission failed to conduct its own investigation of price developments and the level of competition, or even to engage with the Trustee in a meaningful way, preferring instead to assume that codeshare agreements restricted competition. 142 Lufthansa maintains that the same refusal to undertake a careful examination of its arguments is also apparent from the Commission’s persistent repetition of unconvincing legal arguments which Lufthansa had already addressed during the administrative procedure. 143 It must be borne in mind that, under Article 41(1) of the Charter of Fundamental Rights, ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’. 144 In so far as the applicant complains that the Commission failed to take into account all the elements relevant for substantiating its assessment, that complaint has been examined in the context of the first plea. 145 As regards the complaint that the Commission clearly revealed its bias against seriously considering the waiver request by ignoring the legal arguments put forward by Lufthansa, the mere fact that the Commission disputed and rejected Lufthansa’s arguments does not in itself prove that the Commission was biased with regard to the waiver request. Similarly, the fact that the Commission repeated allegedly unconvincing legal arguments, which Lufthansa considers it had already addressed during the administrative procedure, may rather reflect a difference of assessment but does not demonstrate, as such and on its own, a refusal to examine the waiver request impartially. 146 Nor are there grounds for maintaining that the Commission failed to consider the waiver request at all since, as is clear from paragraphs 14 to 19 above, it addressed a number of requests for information to Lufthansa and held various meetings with it during the administrative procedure. 147 Accordingly, the second plea must be rejected. Third plea, alleging misuse of powers 148 The applicant maintains that the Commission used the waiver procedure as leverage to force Swiss to terminate a contractual arrangement that had no clear nexus to the transaction. The Commission is seeking to evade the procedures for investigating and sanctioning possible infringements of Article 101 TFEU under Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), with regard to the codeshare agreement between Swiss and LOT concluded in 2007. The applicant submits that it is apparent, in particular from recital 104 of the contested decision, that that codeshare agreement and its potential anticompetitive effects are the main reason why the Commission rejected the waiver request. 149 The applicant submits that the Commission is thus attempting to evade the obligation, first, to adduce actual proof of the alleged anticompetitive effects of Swiss’s codeshare agreement and, second, to adopt a decision that would be subject to judicial review. The applicant observes, in that regard, that in February 2011 the Commission opened a proceeding, on its own initiative, against codeshare agreements covering hub-to-hub routes concluded between Lufthansa and Turkish Airlines, and between Brussels Airlines and TAP Air Portugal, but that after investigating those cases as a matter of priority for five and a half years, the Commission had still not reached any conclusion. 150 The Court recalls in this regard that it is settled case-law that a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaties for dealing with the circumstances of the case (see judgment of 16 April 2013, Spain and Italy v Council, C‑274/11 and C‑295/11, EU:C:2013:240, paragraph 33 and the case-law cited). 151 The Court finds that the applicant has not produced objective, relevant and consistent evidence establishing that the Commission had used the waiver procedure as leverage, with the sole or principal aim of forcing Swiss to terminate the codeshare agreement with LOT so as to evade the procedures for investigating and sanctioning infringements of Article 101 TFEU. 152 First of all, the procedure was not instigated by the Commission but rather at the applicant’s request. 153 Furthermore, although it is apparent from the file that the Commission takes the view that the codeshare agreement at issue gives rise to competition problems in the present case and that, as follows in particular from recitals 5, 49, 69 and 95 of the contested decision, the main reason for rejection of the waiver request was the maintenance of that agreement or failure to modify it, that nonetheless does not permit the inference that the Commission misused its powers. 154 As has been stated in paragraphs 101 to 103 above, the Commission was justified in taking into account the codeshare agreement between Swiss and LOT in its assessment of the waiver request. That agreement is an integral part of the broader contractual relationship underlying the assessment of competition on the ZRH-WAW route. The Commission had found in the 2005 Decision that, in view of the series of cooperation agreements entered into with Lufthansa, LOT had little incentive to compete with Swiss. The codeshare agreement is thus likely to be relevant for the purposes of assessing competition on that route, irrespective of whether or not that agreement can ultimately justify rejection of the request. 155 It should also be stated that the Commission did not require the applicant to terminate the codeshare agreement but merely suggested, with a view to facilitating the grant of the waiver, that the parties might terminate the agreement or, at the least, limit it to ‘behind and beyond’ routes and thereby reduce the degree of cooperation between the merged entity and LOT. 156 Accordingly, the elements put forward by the applicant cannot be held to amount to objective, relevant and consistent evidence of a misuse of powers and the third plea must be rejected. 157 It follows from all the foregoing considerations that the contested decision must be annulled in so far as it concerns the ZRH-STO route and that the action must be dismissed as to the remainder. Costs 158 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. 159 In view of the circumstances of the present case, the Court decides that each party will bear its own costs. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Annuls, in so far as it concerns the Zurich-Stockholm route, Commission Decision C(2016) 4964 final of 25 July 2016 rejecting Deutsche Lufthansa AG’s request for a waiver of certain commitments rendered binding by the Commission decision of 4 July 2005 approving the merger in Case COMP/M.3770 –– Lufthansa/Swiss; 2. Dismisses the action as to the remainder; 3. Orders each party to bear its own costs. Berardis Papasavvas Spineanu-Matei Delivered in open court in Luxembourg on 16 May 2018. E. Coulon G. Berardis Registrar President Table of contents Background to the dispute Decision authorising the concentration between Lufthansa and Swiss International Air Lines Ltd Contested decision Procedure and forms of order sought Law Preliminary observations First plea, alleging application of an incorrect legal standard, manifest errors of assessment and breach of the principles of proportionality and the protection of legitimate expectations First part, alleging application of an incorrect legal standard in the assessment of the waiver request and breach of the principles of proportionality and the protection of legitimate expectations. Second and fourth parts, alleging manifest error of assessment of Lufthansa’s alliance agreements in the light of the second sentence of review clause 15.2 and failure on the Commission’s part to take into account the change in its policy with respect to the treatment of alliance partners – Preliminary observations – Contractual changes as between Lufthansa and SAS – The Lufthansa/Brussels Airlines Decision and the alleged change in the Commission’s policy with regard to the treatment of alliance partners – The codeshare agreement between Swiss and SAS Third part, alleging that the Commission failed to take account of the fact that competition between Swiss and SAS/LOT constitutes ‘long-term market evolution’ within the meaning of the first sentence of review clause 15.2 Fifth part, alleging failure to comply with the general merger policy with regard to pricing remedies Conclusion concerning the first plea Second plea: alleging breach of the principle of good administration Third plea, alleging misuse of powers Costs * Language of the case: English.