JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
1 October 2025 (*)
( Competition – Agreements, decisions and concerted practices – Aviation sector – Decision rejecting a complaint – Article 7 of Regulation (EC) No 773/2004 – Concerted practice – Wet-leased aircraft – Access to the file – Principle of good administration – No Union interest – Probability of establishing the existence of an infringement – Reasonable time – Manifest error of assessment )
In Case T‑1026/23,
Laudamotion GmbH, established in Schwechat (Austria), represented by N. Levy, G. Rizza and D. Pérez de Lamo, lawyers,
applicant,
v
European Commission, represented by S. Baches Opi, T. Franchoo and I. Söderlund, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed, at the time of the deliberations, of R. da Silva Passos, President, N. Półtorak (Rapporteur) and H. Cassagnabère, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 13 March 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Laudamotion GmbH, seeks the annulment of Commission Decision C(2023) 5177 final of 2 August 2023, by which the Commission rejected its complaint concerning an infringement of Article 101 TFEU allegedly committed by Deutsche Lufthansa AG (‘Lufthansa’) and Air Berlin PLC & Co. Luftverkehrs KG (‘Air Berlin’) (Case AT.40612 Lufthansa – Air Berlin (routes from/to Vienna)) (‘the contested decision’).
Background to the dispute
2        By letter of 25 September 2018, the applicant submitted to the European Commission a complaint pursuant to Article 7(2) of 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), requesting the initiation of an investigation into an alleged anticompetitive agreement between Lufthansa and Air Berlin.
3        In particular, the applicant claimed that, although Lufthansa and Air Berlin notified to the Commission, the Bundeskartellamt (Federal Cartel Office, Germany; ‘the BKartA’) and the Bundeswettbewerbsbehörde (Federal Competition Authority, Austria) the wet lease agreement concluded in 2016 and that agreement was not deemed by those authorities to be a concentration under the applicable rules, the wet lease agreement was only one element of a broader agreement allowing Lufthansa and Air Berlin to coordinate their activities at Vienna airport (Austria) prior to the summer 2017 season of the calendar set by the International Air Transport Association (IATA).
4        By letter of 20 July 2022, the Commission informed the applicant, on the basis of Article 7(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), that it considered that there were insufficient grounds for acting on its complaint (‘the pre-rejection letter’).
5        On 2 September 2022, the applicant submitted observations on the pre-rejection letter (‘the observations’). While contesting the Commission’s provisional assessment, the applicant criticised that institution for having failed to take any meaningful investigative steps and requested access to all the documents on which the Commission had based its assessment.
6        On 2 August 2023, the Commission adopted the contested decision, reiterating the reasoning set out in the pre-rejection letter. In essence, the Commission considered that the existence of an agreement was not the only plausible explanation for the actions of Air Berlin and Lufthansa at Vienna airport ahead of the IATA summer 2017 season. Furthermore, the Commission considered that the likelihood of finding restrictive effects on competition was limited. According to the Commission, each of those two reasons was, in itself, capable of justifying the conclusion that there were insufficient grounds for acting on the applicant’s complaint.
Forms of order sought
7        The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
8        The Commission contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
9        In support of its action, the applicant puts forward three pleas in law.
10      In the first plea, the applicant complains that the Commission infringed the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
11      In the second plea, the applicant submits that the Commission made a manifest error of assessment in rejecting its complaint on the ground that there was another plausible explanation for the parallel behaviour of Lufthansa and Air Berlin.
12      In the third plea, the applicant maintains that the Commission made a manifest error of assessment in rejecting its complaint on the ground that the alleged agreement would not have anticompetitive effects.
The first plea in law, alleging breach of the right to good administration
13      The first plea is divided into two parts. In the first part, the applicant submits that the Commission failed to take meaningful investigative measures, in breach of the right to good administration, as enshrined in Article 41(1) of the Charter. In the second part, the applicant alleges breach of the right to be heard and of the right of access to the file concerning it, as enshrined in Article 41(2)(a) and (b) of the Charter.
14      It is appropriate to begin by examining the second part of the present plea.
The second part of the first plea in law, alleging breach of the right to be heard and of the right of access to the file
15      The applicant submits that the Commission infringed Article 41(2)(a) and (b) of the Charter, Article 8(1) of Regulation No 773/2004 and point 69 of the Commission Notice on the handling of complaints by the Commission under Articles [101] and [102 TFEU] (OJ 2004 C 101, p. 65; ‘the Notice on the handling of complaints’) by refusing it access to the documents on which the Commission had based its provisional assessment, on the ground that those documents were publicly accessible or were already in the applicant’s possession. According to the applicant, that claim is incorrect since the pre-rejection letter and the contested decision are based on the ‘presentation of Air Berlin to business analysts dated 29 September 2016’ (‘the Air Berlin presentation’), which was neither in the applicant’s possession nor publicly accessible. It maintains that the non-public nature of the Air Berlin presentation was confirmed by the fact that, both in the pre-rejection letter and in the contested decision, that presentation was designated as the document marked ‘(ID:20)’, with no indication of the corresponding website.
16      Having produced the Air Berlin presentation in the annex to the reply, the applicant argues that the Commission incorrectly claims that that presentation was publicly accessible ‘through a basic online search’. The website Wikipedia, which allegedly allowed the presentation to be consulted, merely contains a link to an ‘internet archive’ which ‘hosts what appears to be the presentation.’ According to the applicant, an ‘archived’ document cannot be considered to be publicly available, as ‘[it] may not have been publicly available at the same location at the relevant time.’ The applicant submits, inter alia, that it does not appear that the Air Berlin presentation was publicly available at the time when the pre-rejection letter was adopted, that is, in July 2022.
17      In any event, the applicant maintains that there were no grounds for the Commission to refuse it access to a copy of the Air Berlin presentation, since it had been included in the investigation file.
18      The applicant claims that, without access to the Air Berlin presentation, it was denied the opportunity to make known its views on a significant element forming the basis of the contested decision. It argues that, if it had had access to the Air Berlin presentation, it would have been able to draw the Commission’s attention to the general and incomplete nature of the information contained therein and to persuade it to investigate the alleged infringement further.
19      The Commission disputes the applicant’s arguments.
20      By its arguments, the applicant alleges, in essence, breach of its right to be heard and of its right of access to the file, resulting from the Commission’s refusal to grant it access to the Air Berlin presentation.
21      In that regard, it should be recalled that, according to Article 41(2) of the Charter, the right to good administration includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken.
22      It is apparent from the case-law that access to the file in competition cases is intended in particular to enable the addressees of the statement of objections to acquaint themselves with the evidence in the Commission’s file, so that they can express their views effectively on the conclusions reached by the Commission in its statement of objections, on the basis of that evidence (see judgment of 14 May 2020, NKT Verwaltungs and NKT v Commission, C‑607/18 P, not published, EU:C:2020:385, paragraph 261 and the case-law cited). Thus, the right of access to the file is the corollary of the principle of respect for the rights of the defence in proceedings initiated against a person which may well culminate in a measure adversely affecting that person (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68, and of 13 September 2018, UBS Europe and Others, C‑358/16, EU:C:2018:715, paragraphs 60 and 61).
23      It also follows from the case-law that proceedings initiated further to a complaint do not constitute adversarial proceedings between the companies concerned. They are proceedings initiated by the Commission, following the lodging of a complaint, in fulfilment of its duty to ensure that the rules on competition are observed. It follows that the companies which are the subject of the investigation and the companies which have submitted a complaint are not in the same procedural situation and the latter cannot invoke the right to a fair hearing. The complainants must, on the other hand, be given the opportunity to defend their legitimate interests in the course of the proceedings initiated by the Commission and therefore be associated closely with them, although the procedural rights of the complainants are not as far-reaching as the right to a fair hearing of the companies which are the subject of the Commission’s investigation (see judgment of 11 January 2017, Topps Europe v Commission, T‑699/14, not published, EU:T:2017:2, paragraph 29 and the case-law cited).
24      It must also be pointed out that, according to Article 8(1) of Regulation No 773/2004, ‘where the Commission has informed the complainant of its intention to reject a complaint pursuant to Article 7(1) [of that regulation,] the complainant may request access to the documents on which the Commission bases its provisional assessment[; f]or this purpose, the complainant may however not have access to business secrets and other confidential information belonging to other parties involved in the proceedings.’
25      It is apparent from the wording of Article 8(1) of Regulation No 773/2004 and from settled case-law that the right of access to the Commission file afforded to complainants under that provision does not have the same scope as the right of access to the Commission file afforded to persons, undertakings and associations of undertakings that have been sent a statement of objections by the Commission, which relates to all documents which have been obtained, produced or assembled by the Commission Directorate-General for Competition during the investigation, but is limited solely to the documents on which the Commission bases its provisional assessment (see judgment of 11 January 2017, Topps Europe v Commission, T‑699/14, not published, EU:T:2017:2, paragraph 30 and the case-law cited).
26      In addition, in point 69 of the Notice on the handling of complaints, it is stated that, ‘pursuant to Article 8(1) of Regulation [No] 773/2004, the complainant has the right to access the information on which the Commission bases its preliminary view[; s]uch access is normally provided by annexing to the letter a copy of the relevant documents.’
27      In the light of the considerations set out above, it is appropriate to examine the applicant’s claims relating to the Commission’s refusal to grant it access to the Air Berlin presentation.
28      In that regard, it should be noted that, in paragraph 11 of its observations, the applicant requested access to documents on which the Commission had based the pre-rejection letter. In recital 15 of the contested decision, the Commission did not grant that request, taking the view that all the documents in question were ‘publicly accessible or already in [the] possession’ of the applicant. In addition, the Commission specified that ‘the purpose of [the] request for access to documents in [the applicant’s] observations [was] unclear, since [the applicant did] not identify any documents referred to in the [pre-rejection] letter to which [it] would not [already have] access.’
29      It was only at the stage of the application that the applicant stated that it had requested access to the Air Berlin presentation. Taking the view that that was a document on which the Commission had based its assessment, the applicant maintained that the Commission had infringed its right to be heard and its right of access to the file concerning it, which are guaranteed by Article 41(2)(a) and (b) of the Charter, Article 8(1) of Regulation No 773/2004 and point 69 of the Notice on the handling of complaints.
30      In the light of the clarifications provided by the Commission in its defence, the applicant obtained access to the Air Berlin presentation by itself and annexed it to the reply, explaining that it had only recently had the opportunity to review and to comment on it.
31      Thus, the applicant submits that, in the absence of any indication of the website allowing the Air Berlin presentation to be found, that presentation must be considered to be an internal document. It argues that that submission is supported by the term ‘ID’ used by the Commission in referring to the presentation, both in the pre-rejection letter and in the contested decision. Moreover, it claims, even if that presentation was available in the form of an ‘internet archive’, there is uncertainty as to both its source and the possibility of accessing it, which precludes it from being classified as a public document.
32      In that regard, it must be observed that neither in the pre-rejection letter nor in the contested decision did the Commission provide any internet link allowing the Air Berlin presentation to be found. However, that fact is not sufficient to classify the presentation in question as an internal document, particularly since, as the Commission contends, the public nature of the Air Berlin presentation may be inferred from the wording of the contested decision, in so far as the Commission, in that decision, referred to that presentation in a detailed manner, without expressing any reservations as to whether it was internal or confidential.
33      It is true that, in referring to the Air Berlin presentation in the pre-rejection letter and in the contested decision, the Commission used the term ‘ID’. However, contrary to the applicant’s claims, other documents to which the Commission referred in the contested decision were accompanied by such a term, without their public nature being called into question by the applicant. Furthermore, at the hearing, the Commission explained that the term ‘ID’ referred to the number designating the document in its file, and not to an indication that the presentation in question was internal or confidential.
34      As regards the applicant’s assertion that the Air Berlin presentation could not be classified as public, since it was accessible only in the form of an ‘internet archive’, it must be stated that the applicant has not put forward any argument substantiating the existence of doubts as to the possibility of accessing that presentation.
35      In addition, in its written pleadings, the Commission explained the reason why there was at the time only an archived version of the presentation in question, citing a number of ‘archive’ sources where it could be accessed. It is apparent, inter alia, from footnote 92 to the English-language version of the page of the website Wikipedia devoted to Air Berlin that the presentation referred to there was ‘retrieved’ on 29 September 2016. Moreover, it is apparent from the website Internet Archive that the Air Berlin presentation was downloaded on several occasions between 1 October 2016 and the date of the contested decision. When questioned on that point at the hearing, the applicant did not put forward any arguments capable of calling into question the Commission’s explanations concerning the accessibility of the Air Berlin presentation from the moment it was placed online.
36      In any event, the applicant found the Air Berlin presentation by itself and annexed it to the reply.
37      Consequently, it must be held that the Air Berlin presentation constituted a public document.
38      The applicant submits that, notwithstanding the public nature of the Air Berlin presentation, there was no reason for the Commission not to provide the applicant with a copy of it.
39      In that regard, it must be observed that it is true that, in the light of the case-law cited in paragraphs 22 and 23 above, from which it is apparent that the complainant must be associated closely with the proceedings initiated further to its complaint, the Commission could have provided the applicant with a copy of the Air Berlin presentation or, at the very least, indicated to the applicant the internet link allowing the presentation to be accessed, as it did in its defence. Indeed, as it is a document that was not submitted to the Commission by the applicant itself, the communication of that presentation could have contributed to the transparency of the proceedings conducted by the Commission.
40      However, in its observations, the applicant did not specifically request access to the Air Berlin presentation and did not refer to any difficulties related to accessing that presentation.
41      Accordingly, it must be concluded that the Commission did not infringe the applicant’s right to be heard or its right of access to the file. In any event, the applicant has not explained how the Commission’s refusal to provide it with the Air Berlin presentation might have influenced the outcome of the proceedings.
42      It follows that the second part of the first plea in law must be rejected.
The first part of the first plea in law, relating to the absence of meaningful investigative measures
43      The applicant claims that the Commission infringed Article 41(1) of the Charter and point 42 of the Notice on the handling of complaints, by failing to examine carefully the factual and legal elements which it had brought to the Commission’s attention. It argues that, despite the solid evidence provided by the applicant, the Commission did not take any investigative measures to assess that evidence. Instead, the Commission merely based its assessment on limited public information by virtue of which it ‘guessed’ that the behaviour of Lufthansa and Air Berlin constituted independent actions carried out in parallel.
44      The applicant states that it does not claim that the Commission was obliged to initiate infringement proceedings against Lufthansa and Air Berlin on the basis of the information which it provided, but rather that the Commission failed to conduct a diligent investigation into its complaint. Since the applicant had shown that the only plausible (or, in any event, the most plausible) explanation for the behaviour of Lufthansa and Air Berlin was the existence of an agreement, it argues that the Commission should have taken investigative measures in order to examine, at the very least, first, whether Lufthansa had reserved or held back resources needed to secure the slots returned at the last moment by Air Berlin; second, whether there was any reasonable justification for the return by Air Berlin of the slots immediately before the deadline expired; third, whether air carriers other than the applicant itself had also faced obstacles in requesting slots at Vienna airport; fourth, whether there were indications of significant market power on the part of Lufthansa capable of creating barriers to entry at Vienna airport; and, fifth, whether Lufthansa held significant market power on certain origin and destination city-pair (‘O&D city-pair’) routes from or to Vienna airport, in line with the Commission’s established practice.
45      The applicant concludes by submitting that, if, during the four years which elapsed between the lodging of the complaint and the contested decision, the Commission had taken the minimal investigative steps referred to in paragraph 44 above, there is a strong probability that it would have arrived at a different conclusion from the one set out in the contested decision.
46      The Commission disputes the applicant’s arguments.
47      In that regard, it should be observed that, in recital 37 of the contested decision, the Commission pointed out that, in the conduct of its investigations in competition cases, it has freedom of action. In that regard, it stated, in essence, that it was not required to conduct interviews with former managers of Air Berlin or to request information – even internal documents – from Air Berlin’s insolvency administrators simply because the applicant so requested. In addition, in recital 38 of the contested decision, the Commission explained that it had thoroughly examined the data and documents contained in the applicant’s complaint as well as publicly available reports before concluding that such information was sufficient for the purpose of assessing the applicant’s claims and substantiating its preliminary findings.
48      The applicant maintains that, in the absence of further investigative measures, in particular those referred to in the application, the Commission cannot claim that it conducted a diligent investigation by examining carefully the factual elements brought to its attention, in accordance with the duty of diligence arising from Article 41(1) of the Charter and from point 42 of the Notice on the handling of complaints.
49      It must be recalled that Article 41 of the Charter, entitled ‘Right to good administration’, provides, in paragraph 1 thereof, that ‘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.’
50      It is apparent from the case-law relating to the principle of good administration that, where the institutions of the European Union have a power of appraisal, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 22 March 2012, Slovak Telekom v Commission, T‑458/09 and T‑171/10, EU:T:2012:145, paragraph 68 and the case-law cited).
51      It also follows from the case-law that Article 7 of Regulation No 1/2003 does not give the complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and does not oblige the Commission, whatever the circumstances, to continue the proceedings right up to the stage of a final decision (see judgment of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 71 and the case-law cited).
52      In addition, it is an inherent feature of the complaints procedure that the burden of proving the allegation rests on the complainant (see judgment of 12 March 2020, LL-Carpenter v Commission, T‑531/18, not published, EU:T:2020:91, paragraph 69 and the case-law cited), whereas the Commission, entrusted by Article 105(1) TFEU with the task of ensuring application of Articles 101 and 102 TFEU, is responsible for defining and implementing EU competition policy. The Commission has only limited resources, which it must use in taking action against a potentially wide range of conduct which is contrary to competition law. Consequently, in order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it and may exercise its discretion in that regard (see judgment of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 72 and the case-law cited).
53      On the basis of the principles recalled in paragraphs 51 and 52 above, it has been held that, since the Commission is under no obligation to rule on the existence or non-existence of an infringement, it cannot be compelled to carry out an investigation, because such an investigation could have no purpose other than to seek evidence of the existence or non-existence of an infringement which it is not required to establish (see judgment of 16 December 2020, Fakro v Commission, T‑515/18, not published, EU:T:2020:620, paragraph 208 and the case-law cited).
54      The Commission’s discretion is not unlimited, however. First, the Commission must take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint. More particularly, it must consider attentively all the matters of fact and of law which the complainant brings to its attention. In that regard, it follows from settled case-law that where the institutions have a broad discretion, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance; those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 76 and the case-law cited).
55      Second, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint. Since the reasons stated must be sufficiently precise and detailed to enable the General Court effectively to review the Commission’s use of its discretion to define priorities, the Commission must set out the facts justifying the decision and the legal considerations on the basis of which it was adopted (see judgment of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 77 and the case-law cited).
56      It is apparent from the case-law cited in paragraphs 52 and 54 above that, at the stage of the investigation of the complaint culminating in the adoption of the decision under Article 7(2) of Regulation No 773/2004, the Commission was not required to take into consideration matters which had not been brought to its attention by the applicant.
57      In that regard, it must be observed that the applicant claims, in essence, that, by failing to undertake further investigative measures, the Commission did not duly examine the matters which the applicant had brought to its attention.
58      Therefore, in accordance with the case-law cited in paragraph 54 above, it must be determined whether the Commission fulfilled its obligation to consider attentively all the matters of fact and of law brought to its attention by the applicant, by assessing whether they disclosed conduct of such a kind as to distort competition in the internal market and affect trade between the Member States.
59      In the present case, the applicant complains that the Commission, in the first place, did not establish whether Lufthansa had reserved or held back the resources needed to secure the slots returned at the last moment by Air Berlin.
60      In that regard, it must be observed that, in recital 57 of the contested decision, the Commission considered that the applicant had not substantiated its ‘assertion that Lufthansa [had] reserved or held back the resources needed to secure the slots returned late by Air Berlin’. According to the Commission, that assertion was ‘highly speculative’, especially since the applicant had not even attempted to estimate the resources that were allegedly retained. The Commission explained, in recital 57 of that decision, that, in view of the number of slots which Air Berlin returned late, that is, 170 weekly slots, and assuming that Lufthansa would use 6 daily slots per aircraft, that is, 42 weekly slots, Lufthansa would have needed 4 aircraft in order to operate the returned slots. Given that Lufthansa’s fleet comprised approximately 600 aircraft in 2017, the Commission concluded that it was difficult to imagine that Lufthansa did not have the flexibility or room for operational optimisation to redeploy 4 aircraft seamlessly.
61      As the Commission contends, it is clear from those considerations that the applicant’s first claim was diligently examined and rejected by that institution, on account of its ‘highly speculative’ nature, in so far as, first, the applicant had not adduced any evidence to substantiate that claim – in particular, it had provided no estimate of the resources which Lufthansa allegedly held back – and, second, on the basis of the data provided by the applicant in paragraph 29 of its observations, the Commission considered that Lufthansa had sufficient flexibility and operational capacity to redeploy its aircraft and that it therefore had no need to reserve or hold back resources in order to operate new routes.
62      In addition, in the defence, first, the Commission explained that, since Lufthansa knew that it required additional slots in order to operate aircraft under the wet lease agreement, there was no reason for it to rely on the return by Air Berlin of slots to the pool in order to apply for the slots that it required. Second, the Commission refuted the applicant’s claim that Lufthansa had applied for the slots that it required only in January 2017, contending that it was wholly unsubstantiated and implausible. According to the Commission, Lufthansa could have expected that it would need additional slots already in October 2016, such that it was entitled to request them in accordance with the slot allocation timetable, that is, to submit the application for slots by 6 October 2016 in order to be allocated them on 27 October 2016, particularly as Vienna airport was not subject to slot constraints.
63      In the second place, as regards the applicant’s argument that the Commission failed to assess whether there was any reasonable justification for the return by Air Berlin of the slots immediately before the deadline for that return, it must be observed that the applicant’s claim concerning the date on which the slots were returned was examined extensively by the Commission, in recitals 60, 61, 63 and 64 of the contested decision.
64      It is apparent from recitals 60, 61, 63 and 64 of the contested decision that, first, the Commission considered that, by returning a large number of slots to the pool very shortly before the deadline for returning those slots, Air Berlin had acted within the legal framework laid down by Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at Community airports (OJ 1993 L 14, p. 1). Second, the Commission stated that, although such late return may not be usual industry practice, it was not a sufficient indication that there was a broader agreement between Lufthansa and Air Berlin in that respect. In its view, that late return could be explained by the fact that Air Berlin wished to keep its options open for the IATA summer 2017 season for as long as possible, in view of the uncertainty resulting from the ongoing restructuring and the pending decision of the BKartA concerning the wet lease agreement. In that regard, the Commission stated that, in late 2016 and early 2017, the restructuring of Air Berlin had entailed a reduction of 50% in the number of its aircraft and of 77% in the number of its routes, and that this was still ongoing, in particular with respect to the tourism business. The Commission considered that the magnitude of Air Berlin’s restructuring and the uncertainties surrounding its implementation could be regarded, in themselves, as ‘infrequent, and possibly unprecedented’, and explain the exceptional size of the returned slot portfolio and the timing of the return of those slots.
65      It is thus clear from recitals 60, 61, 63 and 64 of the contested decision that the Commission examined the applicant’s claims regarding the lateness of the slot return, providing detailed reasons for its position.
66      In the third place, as regards the applicant’s claim that the Commission failed to examine whether there were obstacles to requesting slots at Vienna airport or other barriers to entry capable of preventing other airlines from offering their services at that airport, it must be stated that the applicant maintains only that Vienna airport is a level 3 coordinated airport, which is characterised by a shortage of slots, without adducing any evidence capable of substantiating its claims in this respect.
67      In addition, the Commission stated, in recital 79 of the contested decision, in essence, that the applicant had adduced no evidence capable of establishing the existence of obstacles to obtaining slots at Vienna airport and, in recital 68 of the contested decision, that it had ‘no information that competing air carriers faced any obstacles to requesting slots at that airport.’ Moreover, in recital 79 of the contested decision, the Commission added that public data showed that competing airlines had considerably reinforced their presence at Vienna airport since 2016, including during the IATA summer 2017 season.
68      It follows from the foregoing that the Commission examined the applicant’s argument that there were obstacles to requesting slots at Vienna airport during the period covered by its complaint – even though that argument was not substantiated in the complaint.
69      Lastly, as regards the applicant’s arguments that the Commission failed to examine whether there were indications of significant market power held by Lufthansa at Vienna airport and on certain O&D city-pair routes from or to Vienna airport, it must be observed that, first, referring to the evidence adduced by the applicant, in recital 77 of the contested decision, the Commission found that the applicant had not substantiated its claims ‘by [means of] any data or evidence, beyond a generic reference in [its] observations to “a number of market developments since 2018”’. Second, in recital 78 of the contested decision, the Commission found that Table 1 in the applicant’s observations, which contains a juxtaposition of changes in certain routes offered by Lufthansa and cancelled by Air Berlin from Vienna airport during the IATA summer 2017 season, did not confirm the applicant’s argument that Lufthansa held significant market power at Vienna airport on certain O&D city-pair routes. Third, in recital 80 of the contested decision, the Commission considered that the applicant had ‘unduly attribute[d] to the alleged agreement the loss of competition between Lufthansa and Air Berlin’, whereas the change in the competitive situation at Vienna airport resulted from the restructuring of Air Berlin between 2016 and 2017 and, inter alia, from the transfer of its operations from Vienna airport to Berlin Tegel airport (Germany) and to Düsseldorf airport (Germany). Fourth, when referring to the applicant’s arguments regarding the subsequent concentration (which occurred in late 2017) between Lufthansa and Air Berlin and the competition concerns identified during its review, the Commission explained, in recital 80 of the contested decision, that those concerns stemmed from the direct competition between Lufthansa and Niki Luftfahrt GmbH (‘Niki’), a subsidiary of Air Berlin, on numerous routes to and from Vienna airport, arising after the implementation of the alleged agreement. According to the Commission, those difficulties, rather than constituting evidence of an alleged agreement between Lufthansa and Air Berlin, were such as to indicate that the intensity of the competition between Lufthansa and Niki, Air Berlin’s subsidiary, had not been reduced.
70      Thus, it is apparent from the contested decision that the Commission examined, with sufficient care and diligence, the claims concerning the strengthening of Lufthansa’s position at Vienna airport, and that it considered, in essence, that the data submitted by the applicant were not such as to demonstrate that Lufthansa’s position at that airport was capable of creating barriers to entry.
71      In the light of the foregoing, it must be concluded that the Commission considered attentively all the matters of fact and of law which the applicant had brought to its attention, with the result that the applicant cannot complain that the Commission infringed either Article 41(1) of the Charter or point 42 of the Notice on the handling of complaints.
72      As regards the applicant’s criticisms concerning the duration of the Commission’s examination of its complaint, it must be stated that, in the introductory part of the application, the applicant merely states that the Commission unduly protracted the investigation. On the assumption that the applicant thus seeks to criticise the Commission for the allegedly excessive duration of the proceedings, it must be observed that, although the 58 months which elapsed between the lodging of the complaint and the adoption of the contested decision constitute a lengthy period, the Commission, contrary to the applicant’s claims, did not remain inactive during that period.
73      In that regard, it must be noted, first of all, that, in recitals 26 and 27 of the contested decision, the Commission stated that, one month after the lodging of the applicant’s complaint, it had addressed to the applicant the Commission’s preliminary views on its claims and that, during a conference call which took place on 23 June 2022, it had informed the applicant of that institution’s intention to reject its complaint. Next, in recital 28 of the contested decision, the Commission explained that, within two months of receiving the applicant’s complaint, it had initiated discussions with the BKartA and the Federal Competition Authority regarding the applicant’s claims. Lastly, in recitals 29 to 34 of the contested decision, the Commission stated, first, that, before dealing with that case, it first had to investigate two other complaints lodged by the applicant’s parent company on 14 September and 22 December 2017, respectively; second, that it was necessary to await the delivery of the Court’s decision in Case T‑296/18 – that delivery ultimately taking place on 20 October 2021 – which concerned issues comparable to those raised in the applicant’s complaint; and, third, that it was necessary to await the outcome of the cases concerning state aid granted to Lufthansa in the context of the COVID-19 pandemic, since those cases bore factual and legal similarities to the applicant’s complaint.
74      Thus, even though the duration of the proceedings which led to the adoption of the contested decision was lengthy, it can be explained by the particular circumstances of the case. In any event, the applicant has not put forward any argument demonstrating that the duration of the proceedings influenced the outcome of those proceedings.
75      It follows from the foregoing considerations that the first part of the first plea in law and, consequently, the first plea in law in its entirety must be rejected.
The second plea in law, alleging that the Commission made a manifest error of assessment in rejecting the complaint on the ground that there was another plausible explanation for the parallel behaviour of Lufthansa and Air Berlin
76      The second plea comprises two parts. In the first part, the applicant submits that the Commission erred in law in finding, on the basis of an incorrect legal standard, that there was a low likelihood of establishing an infringement of Article 101 TFEU. In the second part, it complains that the Commission made a manifest error of assessment in identifying another plausible explanation for the parallel behaviour of Lufthansa and Air Berlin.
77      As a preliminary point, it should be noted that, according to settled case-law, the Commission, entrusted by Article 105(1) TFEU with the task of ensuring application of Articles 101 and 102 TFEU, is responsible for defining and implementing EU competition policy and for that purpose has a discretion as to how it deals with complaints (see judgment of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 72 and the case-law cited).
78      However, as is apparent from the case-law cited in paragraph 54 above, the Commission’s discretion is not unlimited. That institution must consider all the relevant matters of fact and of law which the complainant brings to its attention.
79      In addition, when, in the exercise of its discretion, the Commission decides to give differing degrees of priority to the complaints brought before it, it may not only decide on the order in which they are to be examined, but also reject a complaint on the ground that there is an insufficient European Union interest in further investigation of the case (see judgment of 16 December 2020, Fakro v Commission, T‑515/18, not published, EU:T:2020:620, paragraph 67 and the case-law cited). Given that the assessment of the Union interest raised by a complaint depends on the circumstances of each individual case, the number of assessment criteria to which the Commission may refer should not be limited, nor, conversely, should the Commission be required to have recourse exclusively to certain criteria. In view of the fact that, in an area such as that governed by competition law, the legal and factual context may vary considerably from one case to another, it is possible to apply criteria which may vary considerably, and not predetermined criteria which must be applied, or to apply criteria which had not hitherto been envisaged or to give priority to a single criterion in assessing the Union interest (see judgment of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 74 and the case-law cited).
80      Moreover, as is apparent from the case-law cited in paragraph 53 above, where the Commission decides, as in the present case, not to open an investigation, it is not required to establish, in support of such a decision, that there has been no infringement.
81      Lastly, it must be recalled that review by the Courts of the European Union of the Commission’s exercise of the discretion conferred on it in the handling of complaints must not lead them to substitute their assessment of the Union interest for that of the Commission, but seeks to verify that the contested decision is not based on materially incorrect facts and is not vitiated by an error of law, manifest error of appraisal or misuse of powers. The General Court cannot substitute its own assessment of the Union interest for that of the Commission by considering whether criteria other than those applied by the Commission in the contested decision should have led it to conclude that there was a Union interest in continuing its investigation of the case. Similarly, it is settled case-law, in the case of the rejection of complaints, that the Commission’s assessments concerning allegations of infringement of Article 101 TFEU or Article 102 TFEU involve complex economic appraisals, all the more so when the Commission carries out prospective analyses, the review of which by the Courts of the European Union is limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated, and whether there has been any manifest error of appraisal or a misuse of powers (see judgment of 26 September 2018, EAEPC v Commission, T‑574/14, EU:T:2018:605, paragraph 78 and the case-law cited).
82      In order to enable the General Court effectively to review the Commission’s use of its discretion to define priorities, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint, and the reasons stated must be sufficiently precise and detailed, as is apparent from the case-law cited in paragraph 55 above.
83      It is in the light of those principles that the arguments put forward by the applicant in the context of the second plea in law must be examined.
The first part of the second plea in law, alleging that the Commission erred in law in finding, on the basis of an incorrect legal standard, that there was a low likelihood of infringement
84      The applicant claims that the Commission erred in law in rejecting its complaint on the ground that there was another plausible explanation beyond the alleged agreement, without assessing the degree of probability of that explanation in relation to the plausibility of a cartel.
85      In particular, the applicant submits that, although the Commission is required, in order to establish the existence of an agreement or concerted practice within the meaning of Article 101 TFEU, to determine first whether there is no other explanation for the alleged behaviour, it cannot apply that same standard in order to reject a complaint asking it to determine whether to open an investigation. It argues that applying such a standard would place an intolerable burden on complainants.
86      The applicant maintains that the Commission has an obligation to assess the degree of probability of the different plausible explanations and that it may reject a complaint only if the explanation provided by the complainant is implausible or there are other more plausible explanations. According to the applicant, it follows from the judgment of 18 September 1992, Automec v Commission (T‑24/90, EU:T:1992:97, paragraph 86), that, in ascertaining the Union interest, the Commission is required to balance various factors, inter alia the probability of establishing the alleged infringement.
87      The Commission disputes the applicant’s arguments.
88      In that regard, in recitals 45 to 47 of the contested decision, the Commission noted that, as with the other elements referred to in Article 101(1) TFEU, it was required to adduce precise and consistent evidence capable of demonstrating the existence of an agreement or concerted practice. By contrast, it considered that it had to justify that there were other plausible explanations for the alleged parallel conduct. Referring, in particular, to the judgments of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission (89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 71), and of 13 July 1989, Tournier (395/87, EU:C:1989:319, paragraph 24), the Commission explained, first, that a concerted practice cannot be presumed where the parallel behaviour could be accounted for by reasons other than the existence of concerted action. The prohibition of any form of collusion which distorts competition does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (see judgment of 16 May 2017, Agria Polska and Others v Commission, T‑480/15, EU:T:2017:339, paragraph 44 and the case-law cited). In the light of those principles, the Commission considered that, in the present case, in support of its finding of a low likelihood of infringement, it was not required to demonstrate that the alleged agreement or concerted practice was implausible or less plausible than the alternative explanations that it offered, or to identify information showing that there was no anticompetitive agreement. It considered itself obliged only to justify that there were other plausible explanations for the alleged parallel conduct.
89      It should be noted that, according to settled case-law, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgments of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 26, and of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 51). In that regard, parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct. Although Article 101 TFEU prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (see, to that effect and by analogy, judgment of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission, C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraph 71 and the case-law cited).
90      In that respect, the Court has held, in essence, that the Commission did not make an error of appraisal in rejecting the complaint on the ground that parallel conduct could not be regarded as furnishing proof of concertation unless concertation constituted the only plausible explanation for such conduct. The Court added that it was for the applicant to adduce evidence establishing that the alleged agreement was the only plausible explanation for the alleged parallelism, and held that, in that case, the applicant had not provided such evidence (see, to that effect, judgment of 11 July 2013, Spira v Commission, T‑108/07 and T‑354/08, not published, EU:T:2013:367, paragraph 347).
91      Thus, contrary to the applicant’s claims, it does not follow from the case-law that the Commission is obliged to assess the degree of probability of the different plausible explanations. In particular, no such obligation is in any way apparent from the judgment of 18 September 1992, Automec v Commission (T‑24/90, EU:T:1992:97). In paragraph 86 of that judgment, the Court merely held that, in order to assess the Union interest, the Commission had to take account of the circumstances of the case, and in particular of the legal and factual particulars set out in the complaint referred to it. The Court added that the Commission, in particular, had to balance the significance of the alleged infringement as regards the functioning of the common market, the probability of establishing the existence of the infringement and the scope of the investigation required in order to fulfil, under the best possible conditions, its task of ensuring that Articles 101 and 102 TFEU are complied with.
92      Although, according to the judgment of 18 September 1992, Automec v Commission (T‑24/90, EU:T:1992:97), the probability of establishing the existence of the infringement constitutes one of the assessment criteria to which the Commission may refer in assessing the Union interest, it does not follow from the abovementioned judgment that, when examining that criterion, the Commission must weigh the degree of probability of finding an infringement against the degree of probability that there are other plausible explanations for the alleged behaviour.
93      It is thus apparent from the case-law cited in the previous paragraph that the Commission has a broad discretion in the application of the criteria for assessing the Union interest in further investigation of a complaint under Article 7(2) of Regulation No 773/2004.
94      In the light of the foregoing, it must be concluded that, in the present case, in assessing the probability of the existence of an alleged infringement, the Commission was entitled to confine itself to considering that there was another plausible explanation beyond the alleged cartel.
95      It follows that the Commission did not rely on an incorrect legal standard in order to conclude that there was a low likelihood of establishing the alleged infringement. Accordingly, the first part of the second plea in law must be rejected.
The second part of the second plea in law, alleging that the Commission made a manifest error of assessment in identifying another plausible explanation for the parallel behaviour of Lufthansa and Air Berlin
96      The applicant submits, in essence, that the Commission made a manifest error of assessment in rejecting its complaint on the ground that there was another plausible explanation beyond the alleged agreement. Its line of argument is based on three complaints.
97      In the first complaint, the applicant claims that the Commission overstated Lufthansa’s ability to make an independent commercial decision based only on the Air Berlin announcement and the Air Berlin presentation.
98      In the second complaint, the applicant submits that the Commission understated the implausibility of the timing of the slot return.
99      In the third complaint, the applicant alleges that the Commission overstated the independence of the slot allocation process.
100    In that regard, it should be recalled that it is apparent from the case-law cited in paragraph 81 above that review by the Courts of the European Union must not lead them to substitute their assessment of the Union interest for that of the Commission, but seeks to verify that the contested decision is not based on materially incorrect facts and is not vitiated by an error of law, manifest error of appraisal or misuse of powers.
–       The first complaint, alleging that the Commission overstated Lufthansa’s ability to make an independent commercial decision based only on the Air Berlin announcement and the Air Berlin presentation
101    The applicant submits that the Commission erred in finding that Lufthansa’s decision to increase its services to and from Vienna, from the IATA summer 2017 season, was an independent commercial decision.
102    In that regard, the applicant maintains that the public documents on which the Commission based its assessment, namely the Air Berlin announcement and the Air Berlin presentation, do not plausibly substantiate the conclusion referred to in paragraph 101 above. It argues that those documents are vague and raise further doubts as to the possible explanation for Air Berlin’s conduct. Moreover, on the basis of those documents, no competing air carrier could have reasonably anticipated Air Berlin’s return of the slots. According to the applicant, in those circumstances, and in view of the fact that the issue of the slot return was not addressed in the Air Berlin presentation, Lufthansa must have known in advance the specific timing of Air Berlin’s return of the slots.
103    The applicant submits that the Air Berlin announcement and the Air Berlin presentation did not remove uncertainty as to the scale of the return of the slots sufficiently to provide a plausible explanation for the steps taken by Lufthansa. In that context, the applicant states that it is apparent from the Commission’s decision-making practice that slots are particularly valuable at a coordinated airport such as Vienna airport. Therefore, by returning slots to the pool and giving up a large portfolio of routes, airlines irrevocably forego valuable rights or assets for no consideration.
104    In addition, the applicant claims that it is implausible that Lufthansa would have taken the risk of significantly expanding its offering on Air Berlin’s routes at Vienna airport without knowing in advance that Air Berlin planned to free up almost 10 000 slots in the 10 days prior to the slot return deadline. It maintains that operating a new route requires a number of steps that are usually taken by airlines, even those of Lufthansa’s size, well in advance of the relevant IATA season. In that context, the applicant also submits that the Commission underestimated the resources that Lufthansa would have needed to reserve in order to be able to use Air Berlin’s slots, particularly the number of aircraft required.
105    The Commission disputes the applicant’s arguments.
106    It must be noted that, in asserting that it was unlikely that only Lufthansa had been informed of the details relating to Air Berlin’s forthcoming restructuring, such that the premiss of an anticompetitive agreement did not constitute the only plausible explanation for the redeployment of those two airlines’ operations, the Commission stated, in recitals 49 to 51 of the contested decision, that, on 29 September 2016, Air Berlin had provided business analysts with a presentation illustrating its intention to restructure its future business. First, the Commission pointed out that that plan included the reduction of short- and medium-haul routes which had proved to be loss-making, and the focusing of Air Berlin’s business on the hubs at Berlin Tegel airport and Düsseldorf airport. Second, the Commission indicated that Air Berlin was planning to conclude an agreement with Lufthansa for the lease of 40 aircraft and to continue operating a core fleet of 75 aircraft. Third, in recital 49 of the contested decision, the Commission stated that Air Berlin wished to transfer its leisure business to an independent business unit. In view of those factors, in particular Air Berlin’s public announcement that it would focus its future operations on Berlin Tegel airport and Düsseldorf airport, the Commission considered that any other competing air carrier could have expected a significant reduction in the number of passenger air transport services offered by Air Berlin, including from Vienna airport.
107    The Commission also stated, in recital 54 of the contested decision, that reports by analysts examining Air Berlin’s public announcements indicated that Air Berlin had described the 35-aircraft operation as a ‘non-core’ business consisting in operating flights to tourist destinations and that 19 of those 35 aircraft would be based in Austria and operated by Niki, Air Berlin’s subsidiary. Relying on the finding in the HSBC report according to which Air Berlin wanted to exit its ‘non-core’ business, the Commission considered that, in the light of those factors, it was possible for airlines other than Lufthansa to estimate the number of flights that Air Berlin would withdraw from Austria and that there was ‘limited uncertainty’ regarding the reduction of Air Berlin’s operations on low-frequency seasonal routes such as those between Vienna and the Greek islands, listed in Table 1 in the applicant’s observations.
108    In that regard, it must be noted that, in establishing the findings referred to in paragraphs 106 and 107 above, the Commission, in footnotes 49 to 53 to the contested decision, cited the Air Berlin presentation, the press release accompanying the BKartA decision of 30 January 2017 and the following specialist press articles:
–        the Air Berlin announcement, published on the website of ch-aviation, which presents itself as being the most comprehensive and up-to-date database concerning the aviation sector
–        the announcement of the supervisory board of the Lufthansa Group, published on the latter’s website;
–        an article published on the website of International Airport Review, which presents itself as being the ‘the leading source of information for the airport and aviation community’;
–        an article published on the website of Airways, which presents itself as being ‘among the world’s leading commercial aviation publications’.
109    The Commission found that, in view of the restructuring of operations announced by Air Berlin, Lufthansa as well as any other competing air carrier could have expected a significant reduction in the number of passenger air transport services offered by Air Berlin. That was the case so far as concerned Vienna airport, since Air Berlin had publicly announced its intention to focus its operations on long-haul flights to and from its two hubs, established at Berlin Tegel airport and Düsseldorf airport respectively (recital 50 of the contested decision), to reduce its fleet significantly and to transfer its leisure business to an independent business unit (recital 49 of the contested decision).
110    Contrary to the applicant’s claims, none of the documents on which the Commission based its assessment is such as to give rise to uncertainty with respect to the restructuring of Air Berlin.
111    In that regard, it must be stated that the Air Berlin presentation contains precise information setting out the planned restructuring in detail. Furthermore, the press articles corroborate that information, presenting the restructuring of Air Berlin as certain and imminent.
112    As regards the timing and scale of the slot return, it must be noted that, according to several sources cited in paragraph 108 above, the wet lease agreement concluded with Lufthansa was to enter into force as from the IATA summer 2017 season, subject to its approval by the competent regulatory authorities. Moreover, all the documents cited by the Commission clearly showed the scale of the planned restructuring. It is apparent from those documents that Air Berlin was to reduce its fleet by nearly half and was planning to lay off 1 200 persons, that is, approximately 14% of its staff. Furthermore, it was clearly stated in those documents that Air Berlin would focus its operations on the hubs located at Berlin Tegel airport and Düsseldorf airport with respect to its long-haul flights, the latter constituting Air Berlin’s key business after restructuring.
113    In addition, as regards the ‘touristic operations’ of Niki, Air Berlin’s subsidiary, they were intended to be incorporated into a joint venture consisting of TUI Group and Etihad Airways. Although Air Berlin stated in its presentation that, so far as concerned Niki’s future, it was still assessing strategic options, the press was reporting that Air Berlin’s restructuring was in any event likely to strengthen the position of Austrian Airlines, a subsidiary of Lufthansa, at Vienna airport, and that, from Lufthansa’s perspective, the restructuring of Air Berlin was likely to eliminate its competitor in numerous secondary markets.
114    In the light of the abovementioned elements, it must be concluded that the public documents available in September 2016 were such as to justify the Commission’s finding that Lufthansa as well as any other competing air carrier could reasonably have anticipated Air Berlin’s return of the slots. Accordingly, contrary to the applicant’s claims, the Commission did not overstate Lufthansa’s ability to make an independent commercial decision based on those documents.
115    That conclusion cannot be called into question by the applicant’s argument that Air Berlin’s return of the slots did not constitute an economically rational solution, in circumstances where there were better solutions which were more common in the sector and economically more rational, inter alia slot leasing agreements or ‘babysitting’ agreements consisting in granting another airline, temporarily and free of charge, a right to use its own slots.
116    It suffices to observe that neither the Air Berlin presentation nor the press articles referred to in paragraph 108 above mentioned Air Berlin’s intention to conclude slot agreements, in particular so far as concerned flights relating to Vienna airport. In any event, it is apparent from the case-law cited in paragraphs 51 to 54 above that the Commission is required to consider the matters of fact and of law which the complainant brings to its attention, in order to assess whether they disclose conduct of such a kind as to distort competition. By contrast, it is not required to assess the economic rationality of such conduct.
117    Nor can that conclusion be called into question by the applicant’s arguments according to which, first, airlines that prepare in advance for the IATA season are no longer able, after the initial allocation of slots, to make significant changes to their flight programmes, and, second, the Commission did not plausibly explain whether Lufthansa had the resources needed in order to be able to use Air Berlin’s slots.
118    As regards, first, the argument concerning the possibility for airlines to make changes to their flight programmes after the initial allocation of slots, it must be noted that, in recital 58 of the contested decision, the Commission considered that the applicant had not substantiated its assertion that airlines had settled their flight plans for the IATA summer 2017 season well before the slots were returned, so that it was almost impossible for air carriers other than Lufthansa to claim the slots returned to the pool. In that regard, the Commission stated that, in the context of its acquisition by Ryanair in 2018, the applicant had substantially amended its flight programmes for the ongoing IATA summer 2018 season, and that Ryanair had made at least nine aircraft available to the applicant in order to ensure that its historic rights over certain slots would be preserved. In recital 69 of the contested decision, the Commission also cited examples of two other airlines that made changes to their schedules during IATA seasons.
119    In that regard, it must be observed that, in addition to the fact that the applicant does not rely on any relevant evidence capable of calling into question the Commission’s findings set out in recitals 58 and 69 of the contested decision, which reject the applicant’s arguments as being unfounded and contradicted by practice, paragraph 8.5.2 of the IATA Worldwide Slot Guidelines, in the version applicable to the facts of the case, expressly provides that, ‘even at short notice, it may be possible to reallocate returned slots to other operators.’
120    Furthermore, while the examples put forward by the Commission in recitals 58 and 69 of the contested decision relate to situations that are different from the present case and the applicant disputes their relevance, they support the Commission’s view that airlines are, to a certain extent, capable of changing their schedule depending on the circumstances.
121    As regards, second, the applicant’s argument concerning Lufthansa’s specific situation, it must be noted that the Commission, in recitals 56 and 57 of the contested decision, considered that the applicant had not substantiated its assertions in that regard and that, in any event, ‘it seem[ed] difficult to argue that Lufthansa did not have the flexibility or room for operational optimisation to redeploy seamlessly four aircraft or that it would [have been] necessary to cancel a significant number of services in order to redeploy [those] aircraft.’
122    Moreover, in its defence, the Commission stated, first, that there was no link between the flights marketed by Lufthansa from October 2016 and Air Berlin’s return of the slots in January 2017. The Commission explained, second, that Lufthansa did not need to use the slots returned by Air Berlin at Vienna airport, since it was in a position to apply for them, in accordance with the regular timetable for slot allocation. According to the Commission, given that Lufthansa ran the commercial risk of operating the wet-leased aircraft and that, moreover, there were no slot constraints at Vienna airport, Lufthansa was very likely to have received all the slots requested already at the time of the initial allocation in October 2016.
123    Therefore, since (i) the Commission had no circumstantial or other evidence as to the existence of slot constraints at Vienna airport, (ii) the applicant did not rely on any evidence as to the existence of a link between the flights scheduled by Lufthansa from October 2016 and Air Berlin’s return of the slots in January 2017, and (iii) it was found that the size of Lufthansa’s fleet was such as to enable Lufthansa to adapt to the new slots, the Commission did not vitiate with illegality its finding that Lufthansa could have started scheduling its flights already in October 2016.
124    It follows from all of the foregoing that the Commission was entitled to find that Lufthansa’s decision to expand its operations at Vienna airport as from the IATA summer 2017 season could reasonably be considered to be an independent commercial decision. Consequently, the first complaint must be rejected as unfounded.
–       The second complaint, alleging that the Commission understated the implausibility of the timing of the return of the slots
125    The applicant complains that the Commission understated the implausibility of the timing of Air Berlin’s return of the slots. It states that it does not claim that Air Berlin returned slots in breach of Regulation No 95/93, but rather that Lufthansa and Air Berlin coordinated the scale and timing of the return so as to prevent any other airline from applying for the slots in question.
126    The applicant submits that the finding, set out in recital 61 of the contested decision, that Air Berlin delayed the return of the slots on the grounds that ‘it wished to keep its options open for the … IATA Summer [2017] Season … for as long as possible, in view of the uncertainty it faced as a result of its ongoing restructuring and the pending decision by the BKartA concerning the [w]et [l]eases’ is manifestly erroneous, implausible and even contradictory, since Air Berlin returned the slots before the BKartA adopted its decision.
127    The Commission disputes the applicant’s arguments.
128    In that regard, it must be noted that, in recital 60 of the contested decision, the Commission considered that neither Regulation No 95/93 nor any other legal act obliged an air carrier to return slots a given or minimum amount of time before the deadline for returning them. It added, in that recital, that the mere fact that Air Berlin returned a large number of slots to the pool shortly before the return deadline and that this may not be usual industry practice was not, in itself, a sufficient indication that there was a broader agreement between Lufthansa and Air Berlin.
129    Thus, the Commission considered that, in the absence of other evidence, the return of the slots, which was carried out in accordance with the rules laid down by the applicable regulation, did not demonstrate the existence of an infringement.
130    In recitals 61 to 63 of the contested decision, in responding to the applicant’s objections that Air Berlin returned the slots even before the BKartA had taken a decision on the authorisation requested of it, the Commission noted that Air Berlin’s decision to retain its slots for as long as possible was justified, in view of all the uncertainties related to the ongoing restructuring to which that airline was subject, inter alia the potential takeover of Niki, Air Berlin’s subsidiary, by Etihad Airways. The Commission added that the BKartA decision was not irrelevant to Air Berlin’s decision to retain or return slots, in so far as, if the BKartA had refused to approve the wet lease agreement, that airline would have needed slots in order to continue providing passenger air transport services with the flight capacity covered by that agreement. Conversely, if the wet lease agreement were approved, it would be for Lufthansa to obtain through means other than a transfer of Air Berlin’s slots – namely, under the general slot allocation procedure – the slots that it needed in order to provide air transport services using the aircraft covered by the wet lease agreement.
131    Thus, it is apparent from the contested decision that the Commission considered that the uncertainty related to the BKartA decision was one of the uncertainties surrounding the restructuring of Air Berlin. Having regard to all the uncertainties associated with the ongoing restructuring, inter alia the potential takeover of Niki, Air Berlin’s subsidiary, by Etihad Airways, the Commission found that the view that Air Berlin ‘wished to keep its options open for the … IATA Summer [2017] Season … for as long as possible’ (recital 61 of the contested decision) was plausible. However, with the deadline laid down by Regulation No 95/93 approaching, Air Berlin could no longer delay the return of slots at Vienna airport, even though the BKartA had not yet formally approved the wet lease agreement.
132    In those circumstances, while there may have been potential uncertainties regarding the BKartA approval process, they had to be considered in the light of the public information concerning Air Berlin’s restructuring, from which it was clear that Air Berlin would withdraw from a large number of routes at Vienna airport as from the IATA summer 2017 season (see paragraphs 106, 109 and 112 above).
133    It is true that, as the applicant submits, in recital 63 of the contested decision, the Commission states, in essence, that the BKartA decision was not irrelevant to Air Berlin’s decision to retain or return slots, in so far as, if the BKartA had not approved the wet lease agreement, Air Berlin would have needed its slots in order to continue providing services. However, according to the Commission, once that transaction was approved, Air Berlin no longer needed the returned slots and it was for Lufthansa to obtain the slots, under the general procedure, in order to operate new flights.
134    In other words, contrary to the applicant’s claims, the Commission’s reasoning in the contested decision is not contradictory, in so far as it is apparent therefrom that the decision to delay the return of slots at Vienna airport was justified by a series of uncertainties surrounding the restructuring of Air Berlin, inter alia the uncertainty that resulted from waiting for the BKartA decision. Even if those uncertainties were not dispelled, Air Berlin was required to return the slots before the deadline laid down by the applicable legislation.
135    In the light of the foregoing, it must be held that the Commission properly examined the applicant’s claims concerning the timing of the return of Air Berlin’s slots at Vienna airport. Consequently, the second complaint must be rejected as unfounded.
–       The third complaint, alleging that the Commission overstated the independence of the slot allocation process
136    The applicant claims that the Commission overstated the independence of the slot allocation process. In so far as it submits that Lufthansa and Air Berlin coordinated the scale and timing of the return of the slots so as to prevent any other airline from applying for them, the applicant maintains that the assertion relating to the independence of the coordinator and of the slot allocation process does not adequately address the concern raised in the complaint.
137    In that context, the applicant submits that the Commission’s assertion, made in recital 69 of the contested decision, that airlines other than Lufthansa could have applied for the slots after the initial allocation procedure, as demonstrated by two examples of airlines that allegedly succeeded in rapidly ramping up their operations shortly after being allocated slots, is irrelevant. It argues that, unlike Air Berlin’s sudden and unexpected decision to return the slots, in the cases of the airlines referred to in the contested decision, the precise scale and timing of the reallocation of those slots were foreseeable.
138    The applicant also contests the Commission’s finding that the other airlines could have anticipated the timing of the return since, if the slots were not returned by the deadline, Air Berlin ran the risk of sanctions.
139    The Commission disputes the applicant’s arguments.
140    In that regard, it must be observed that, in recitals 66 to 70 of the contested decision, the Commission set out arguments relating to the independence of the slot allocation process. In the first place, the Commission considered that no agreement on slots was plausible, since Lufthansa could not be certain that it would obtain all of them. In the second place, in responding to the applicant’s claims that Air Berlin and Lufthansa had agreed to coordinate the return by Air Berlin of the slots at Vienna airport so as to prevent other airlines from applying for the slots, the Commission considered that, in view of the fact that the public announcements concerning Air Berlin’s restructuring had been made before the initial slot allocation procedure, any competing air carrier ‘had the time and opportunity to apply for slots at Vienna airport’, and that it ‘ha[d] no information that competing air carriers [had] faced any obstacles to requesting slots at that airport.’ In the third place, in order to refute the applicant’s claims that it was impossible for other airlines to apply for slots returned late by Air Berlin, the Commission cited examples of airlines that decided to expand their operations and applied for additional slots after the initial allocation procedure.
141    In those circumstances, it must be observed, first, that the applicant has not demonstrated that the Commission overstated the independence of the slot allocation process. Slots are allocated by the independent coordinator in accordance with the rules laid down by Regulation No 95/93 and the Worldwide Slot Guidelines, which ensure that slots are allocated in a fair, non-discriminatory and transparent manner. Accordingly, even if Lufthansa and Air Berlin had agreed on the transfer of slots, Lufthansa would have had to request them from the Vienna airport coordinator, in accordance with the applicable rules.
142    In the second place, the Commission was entitled to take the view that the information relating to Air Berlin’s restructuring had been made public sufficiently early in order for interested airlines to be able to consider increasing their offering at Vienna airport, if necessary by requesting additional slots, even under the initial allocation procedure.
143    In addition, the Commission noted that, even though airlines had the information necessary to assess the opportunity of requesting additional slots, there was no indication that they had requested them. Indeed, although it maintains that Vienna airport is a level 3 coordinated airport which is characterised by a shortage of slots, the applicant has adduced no evidence capable of substantiating its claims in that regard (see paragraph 67 above). Moreover, when questioned on that matter at the hearing, the applicant was unable to point to any competing airline that had wished to request more slots at Vienna airport for the IATA summer 2017 season.
144    As regards the relevance of the examples of other airlines cited by the Commission in recital 69 of the contested decision, although they relate to situations that are different from the present case, those examples generally support the Commission’s view that airlines are, to a certain extent, capable of changing their schedule depending on circumstances in the sector.
145    In the third place, with respect to the applicant’s argument that the return of slots after the return deadline could expose the airline to sanctions, it should be noted that, in accordance with paragraph 8.3.2 of the Worldwide Slot Guidelines and Article 8(1)(a) of Regulation No 95/93, slots are allocated on a priority basis to the air carriers which operated them during the previous season (historic slots). According to paragraphs 8.5.4 and 8.5.5 of those guidelines, ‘airlines that intentionally return series of slots after the Slot Return Deadline will receive a lower priority by the coordinator during the Initial Coordination of the next equivalent season[; a] list of airlines that return series of slots after the Slot Return Deadline will be maintained and published by the coordinator.’
146    It follows from the foregoing that infringement of the rules relating to the return of slots, such as the return of slots after the deadline laid down by the applicable legislation, weakens the position of the carrier at the relevant airport, inasmuch as it may affect the number of slots that are allocated to it ‘on a priority basis’, simply by virtue of its continued presence at the relevant airport.
147    It follows that the Commission did not overstate the independence of the slot allocation process and that the third complaint must be rejected as unfounded.
148    In the light of the foregoing, it must be concluded that the Commission did not make a manifest error of appraisal in finding that the existence of an alleged agreement was not the only plausible explanation for the conduct of Air Berlin and Lufthansa as regards Vienna airport prior to the IATA summer 2017 season, since that conduct could have resulted from normal conditions of competition owing to the restructuring and reduction of Air Berlin’s operations.
149    Thus, the second part of the second plea in law and, consequently, the second plea in law in its entirety must also be rejected.
150    As regards the third plea in law, alleging that the Commission made a manifest error of assessment in considering that the alleged agreement did not have anticompetitive effects, it must be stated that, in the contested decision, the applicant’s claims in that regard were examined only ‘for the sake of … completeness and in subordinate order’, since the rejection of the complaint was based on the finding that the existence of such an agreement was not the only plausible explanation for the conduct of Air Berlin and Lufthansa as regards Vienna airport prior to the IATA summer 2017 season. In so far as the arguments raised by the applicant against that finding in the context of the second plea in law have been rejected, there is no longer any need to examine the merits of the arguments calling into question the additional grounds set out in the contested decision.
151    Accordingly, the action must be dismissed in its entirety, without it being necessary to examine the third plea in law.
Costs
152    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, according to Article 135(1) of the Rules of Procedure, if equity so requires, the Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his or her own, or even that he or she is not to be ordered to pay any.
153    In the present case, the applicant has been unsuccessful and the Commission has expressly applied for costs. However, having regard to the circumstances of the case, and in particular the especially lengthy duration of the proceedings which led to the adoption of the contested decision, equity requires, in accordance with Article 135(1) of the Rules of Procedure, that each party is to bear its own costs (see, to that effect, judgment of 16 December 2020, Fakro v Commission, T‑515/18, not published, EU:T:2020:620, paragraph 215).
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Laudamotion GmbH and the European Commission each to bear their own costs.
da Silva Passos
Półtorak
Cassagnabère
Delivered in open court in Luxembourg on 1 October 2025.
V. Di Bucci
M. van der Woude
Registrar
President
Table of contents
Background to the dispute
Forms of order sought
Law
The first plea in law, alleging breach of the right to good administration
The second part of the first plea in law, alleging breach of the right to be heard and of the right of access to the file
The first part of the first plea in law, relating to the absence of meaningful investigative measures
The second plea in law, alleging that the Commission made a manifest error of assessment in rejecting the complaint on the ground that there was another plausible explanation for the parallel behaviour of Lufthansa and Air Berlin
The first part of the second plea in law, alleging that the Commission erred in law in finding, on the basis of an incorrect legal standard, that there was a low likelihood of infringement
The second part of the second plea in law, alleging that the Commission made a manifest error of assessment in identifying another plausible explanation for the parallel behaviour of Lufthansa and Air Berlin
– The first complaint, alleging that the Commission overstated Lufthansa’s ability to make an independent commercial decision based only on the Air Berlin announcement and the Air Berlin presentation
– The second complaint, alleging that the Commission understated the implausibility of the timing of the return of the slots
– The third complaint, alleging that the Commission overstated the independence of the slot allocation process
Costs
*      Language of the case: English.