JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)
20 October 2021 (*)
(Competition – Concentrations – Air transport – Decision declaring a concentration to be compatible with the internal market and the EEA Agreement – Relevant market – Assessment of the effects of the transaction on competition – Absence of commitment – Obligation to state reasons)
In Case T‑240/18,
Polskie Linie Lotnicze ‘LOT’ S.A., established in Warsaw (Poland), represented by M. Jeżewski and M. König, lawyers,
applicant,
v
European Commission, represented by L. Wildpanner, T. Franchoo and J. Szczodrowski, acting as Agents,
defendant
supported by
easyJet plc, established in Luton (United Kingdom), represented by M. Odriozola Alén, I. Terlecka and T. Reeves, lawyers,
intervener,
APPLICATION based on Article 263 TFEU seeking annulment of Commission Decision C(2017) 8776 final of 12 December 2017 declaring a concentration compatible with the internal market and the EEA Agreement (Case COMP/M.8672 – easyJet/Certain Air Berlin assets),
THE GENERAL COURT (Tenth Chamber, Extended Composition),
composed of M. van der Woude, President, A. Kornezov, E. Buttigieg, K. Kowalik-Bańczyk (Rapporteur) and G. Hesse, Judges,
Registrar: R. Ūkelytė, Administrator,
having regard to the written part of the procedure and further to the hearing on 11 September 2020,
gives the following
Judgment
Background to the dispute
1        Air Berlin plc was an airline. In 2016, in the wake of the financial difficulties it was facing, it implemented a restructuring plan which was to be financed in part by loans from one of its shareholders, Etihad Airways PJSC.
2        On 9 August 2017, Etihad Airways did not pay the instalment of a loan that was due.
3        On 11 August 2017, Etihad Airways publicly announced that it would no longer provide financial support to Air Berlin.
4        On 15 August 2017, first, Air Berlin filed an application before the Amtsgericht Charlottenburg (District Court, Charlottenburg, Germany) for insolvency proceedings to be opened, which authorised it to continue managing and disposing of its assets under the supervision of an interim administrator.
5        Secondly, the German Government notified the European Commission, in accordance with Article 108(3) TFEU, of an aid measure in the form of a guarantee-backed loan for a maximum amount of EUR 150 million in favour of Air Berlin (‘the rescue aid’). By Decision C(2017) 6080 final of 4 September 2017, on State aid SA.48937 (2017/N) – Germany – Rescue Aid in favour of Air Berlin (OJ 2017 C 400, p. 7; ‘the decision declaring the rescue aid compatible with the internal market’), the Commission declared the rescue aid compatible with the internal market. In that regard, it stated that the aid was to enable Air Berlin to continue operations for a maximum of three months, during which time Air Berlin’s assets were to be sold.
6        On 27 October 2017, the intervener, easyJet plc, and Air Berlin entered into an agreement concerning the acquisition of slots, in particular at Berlin-Tegel Airport (Germany), the parking stands associated with those slots, Air Berlin’s customer bookings in respect of the operations associated with those slots, various aircraft furnishings and related equipment, and historic data relating to all those assets (‘the agreement of 27 October 2017’).
7        On 28 October 2017, Air Berlin ceased its operations in the passenger air transport service markets.
8        By order of 1 November 2017, the Amtsgericht Charlottenburg (District Court, Charlottenburg) found that Air Berlin was in a situation of established insolvency and over-indebtedness.
9        On 7 November 2017, the intervener notified the Commission, in accordance with the first subparagraph of Article 4(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1), of the concentration by which it would acquire the assets referred to in paragraph 6 above, in accordance with the agreement of 27 October 2017 (‘the concentration at issue’).
10      By Decision C(2017) 8776 final of 12 December 2017 (Case COMP/M.8672 – easyJet/Certain Air Berlin assets) (‘the contested decision’), the Commission found that the concentration at issue was compatible with the internal market under Article 6(1)(b) of Regulation No 139/2004.
11      More specifically, in the first place, the Commission considered, first, that the concentration at issue primarily entailed the transfer of slots from Air Berlin to the intervener and, secondly, that Air Berlin had ceased its passenger air transport operations prior to, and independently of, that concentration. The Commission noted, in that regard, that those slots were not linked to any specific routes and that Air Berlin no longer operated any routes. The Commission concluded that, in those circumstances, the assessment of the effects of that concentration on the passenger air transport service markets, defined on the basis of the point of origin/point of destination city-pair approach (‘the O&D markets’), failed to capture the ‘structural effects’ on competition brought about by such a concentration. Accordingly, rather than assessing, in accordance with its previous decision-making practice, the effects of the concentration at issue on each of the markets in which Air Berlin and the intervener were present, it defined the relevant markets for passenger air transport services by aggregating all the O&D markets originating from or arriving at each of the airports at which Air Berlin’s slots were transferred to the intervener. The Commission therefore defined the relevant markets as the markets for passenger air transport services from or to those airports.
12      As regards, more specifically, Berlin-Tegel airport, the Commission noted that the intervener did not hold any slots at that airport prior to the concentration at issue, but that it held some at Berlin-Schönefeld airport (Germany). It thus considered that the transfer of Air Berlin’s slots at Berlin-Tegel airport would have no effect on competition if those airports were regarded as forming part of different geographic markets. However, rather than deciding whether or not those airports formed part of the same geographic market, the Commission preferred to ascertain whether that concentration would give rise to serious doubts as to its compatibility with the internal market if those airports were regarded as forming part of the same geographic market.
13      In the second place, the Commission considered, in essence, that the intervener would have the ability to foreclose access to the relevant markets for passenger air transport services if three conditions were met. First, if the number of slots held by the intervener at one of the airports concerned represented a significant share of the total number of slots at that airport, in particular at the airport’s peak times. Secondly, if the concentration at issue significantly increased the number of slots held by the intervener at that airport, in particular at peak times. Thirdly, if the intervener’s slot holding could negatively affect the overall available slot capacity at that airport, given the high congestion rate at the airport and the large number of slots held by the intervener.
14      The Commission inferred from this that the intervener would not have the ability to foreclose access to the relevant markets for passenger air transport services from or to any of the airports to which Air Berlin’s slots related. Nevertheless, in view of the greater impact of the concentration at Berlin-Tegel and Berlin-Schönefeld airports (‘the Berlin airports’), it also examined whether the intervener would have an incentive to foreclose access to the markets for passenger air transport services from or to those airports. Taking into account, inter alia, the congestion rate at those airports, the market share of the intervener’s competitors and the commercial strategies previously adopted by the intervener, it considered that the intervener would not have the incentive to foreclose access to those markets. Lastly, it noted that, in view of the presence of two other major airlines in those markets, the implementation of a possible foreclosure strategy by the intervener would not lead to a reduction in competition in those markets.
Procedure and forms of order sought
15      By application lodged at the Court Registry on 16 April 2018, the applicant, Polskie Linie Lotnicze ‘LOT’ S.A., brought the present action.
16      By document lodged at the Court Registry on 27 July 2018, the intervener sought leave to intervene in support of the form of order sought by the Commission. By order of 28 November 2018, the President of the Ninth Chamber of the Court granted that application for leave to intervene.
17      By documents of 27 August 2018 and of 9 April and 27 June 2019, the applicant requested that certain information contained in its pleadings and the annexes thereto be treated as confidential.
18      Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Tenth Chamber, to which the present case was accordingly allocated.
19      On a proposal from the Tenth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.
20      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs;
–        order the intervener to bear its own costs.
21      The applicant also requested the Court, pursuant to Article 88 of the Rules of Procedure, to adopt measures of organisation of procedure relating to the rescue aid, the cessation of Air Berlin’s operations and the sale of its assets.
22      The Commission and the intervener contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
23      As a preliminary point, it should be noted that the intervener disputes the admissibility of the action. However, it should be observed in that regard that it is not necessary to rule on the admissibility of an action where it must, in any event, be dismissed on the merits (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52). Consequently, in the present case, in so far as, for the reasons set out below, the action must be dismissed on the merits, it is not necessary to rule on its admissibility.
24      In support of the action, the applicant raises six pleas in law, alleging, first, a poor definition of the relevant markets; secondly, a manifest error in the assessment of the effects of the concentration at issue; thirdly, failure to examine any potential efficiencies generated by that concentration; fourthly, the inadequacy of the commitments given by the intervener; fifthly, failure to take account of the rescue aid in the assessment of the effects of that concentration; and sixthly, infringement of Article 296 TFEU.
The first plea, alleging a poor definition of the relevant markets
25      In the context of the first plea, the applicant complains that the Commission adopted a poor definition of the relevant markets. This plea essentially comprises two parts. By the first part, the applicant disputes the premisses underlying the Commission’s reasoning, namely, first, that Air Berlin had ceased its operations prior to, and independently of, the concentration at issue and, secondly, that the intervener was acquiring only Air Berlin’s assets, and not Air Berlin as an undertaking. By the second part, it complains that the Commission did not define the relevant markets for passenger air transport services on the basis of the O&D markets, including where Air Berlin is regarded as having already withdrawn from some of those markets.
26      The Commission and the intervener dispute the applicant’s arguments.
The first part of the first plea, alleging that Air Berlin had not ceased its operations prior to, and independently of, the concentration and should be regarded as an undertaking for the purposes of assessing the effects of that concentration
27      In the contested decision, the Commission found that Air Berlin had ceased its operations on 28 October 2017 and had therefore withdrawn from all the O&D markets on which it was present prior to, and independently of, the concentration. In those circumstances, it considered that, in so far as that concentration primarily related to slots, it would result in the takeover by the intervener of Air Berlin’s position not specifically in the O&D markets in which Air Berlin was present, but at the airports to which those slots related.
28      In the first place, the applicant submits that the Commission was wrong to consider that Air Berlin had ceased its operations independently of the implementation of the concentration at issue. It notes that on 15 August 2017, the day that Air Berlin filed an application for insolvency proceedings to be opened, the German authorities decided to grant rescue aid to Air Berlin. That aid enabled Air Berlin to avoid having its operating licence withdrawn and, consequently, to continue its operations and retain its assets, including its slots. The purpose of that aid was thus to enable some of its slots to be transferred to the intervener, pursuant to Article 8a of 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), as amended by Regulation (EC) No 545/2009 of the European Parliament and of the Council of 18 June 2009 (OJ 2009 L 167, p. 24).
29      In that regard, it is common ground that Air Berlin’s insolvency proceedings were opened on 15 August 2017 and that those proceedings arose as a result of Air Berlin’s financial difficulties and Etihad Airways’ refusal to pay the instalment of a loan to Air Berlin. Nor does the applicant dispute that, as is apparent from the decision declaring the rescue aid compatible with the internal market, the purpose of that aid was only to delay, for a maximum of three months, the cessation of Air Berlin’s operations, not to prevent it.
30      Consequently, Air Berlin would have ceased its operations even in the absence of the concentration at issue, which is why the Commission rightly considered that Air Berlin had ceased its operations independently of that concentration.
31      In the second place, the applicant disputes the fact that Air Berlin had ceased operations prior to the concentration at issue. More specifically, it argues that Air Berlin did not cease its operations until 28 October 2017, or after the agreement of 27 October 2017, and that the negotiation of that agreement had begun in the weeks preceding August 2017. It infers from this that Air Berlin was still operating during that negotiation. The fact that, since the opening of the insolvency proceedings on 15 August 2017, Air Berlin had been actively discouraging new bookings in respect of its services does not mean that it was not operating, since, in view of the rescue aid granted to it, it had been able to retain its air operator certificate and its operating licence.
32      In that regard, it should be observed that, under Article 7(1) of Regulation No 139/2004, a concentration with a European dimension may not be implemented either before its notification or until it has been declared compatible with the internal market, unless the Commission grants a derogation from that obligation on the basis of Article 7(3) of that regulation.
33      In so far as it is not apparent from the documents before the Court that the Commission granted such a derogation, it should be pointed out in the present case that the concentration at issue could not be fully implemented until after the adoption of the contested decision on 12 December 2017, that is to say almost a month and a half after Air Berlin ceased its operations.
34      Therefore, the applicant is not justified in criticising the Commission for having considered that Air Berlin had ceased its operations prior to the concentration at issue.
35      In the third place, the applicant criticises the Commission for having artificially disassociated Air Berlin’s assets, which are the subject of the concentration at issue, from Air Berlin as an undertaking, which was one of intervener’s rival airlines. Although the intervener acquired only some of Air Berlin’s assets, the applicant maintains that Air Berlin was both the seller of those assets and one of the parties to that concentration. It adds that only undertakings, and not intangible sets of assets, can be classed as parties to a concentration. In view of the transfer of Air Berlin’s slots to the intervener, the intervener did in fact acquire an undertaking in the context of the concentration at issue.
36      In that regard, first, it should be observed that, under Article 3(1)(b) of Regulation No 139/2004, a concentration is to be deemed to arise where a change of control on a lasting basis results from the acquisition, by an undertaking, of direct control of the whole or parts of another undertaking. Furthermore, with regard to the calculation of turnover, Article 5(2) of that regulation provides that, where the concentration consists of the acquisition of parts of an undertaking, only the turnover relating to the parts which are the subject of the concentration are to be taken into account with regard to the seller. Therefore, as is rightly pointed out in paragraph 136 of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 (OJ 2008 C 95, p. 1, and corrigendum OJ 2009 C 43, p. 10), the undertakings concerned are the acquirer(s) and the acquired part(s) of the target undertaking, but not the remaining businesses of the seller.
37      Therefore, contrary to what the applicant submits, the operations retained by Air Berlin are not to be regarded as an undertaking concerned within the meaning of Regulation No 139/2004.
38      Secondly, it should be noted that the applicant does not dispute the fact, observed by the Commission in paragraph 15 of the contested decision, that assets may, within a period of three years, constitute a business with a market presence to which a market turnover can be attributed. Nor does it dispute that such assets may, in those circumstances, constitute an undertaking concerned within the meaning of Regulation No 139/2004. In addition, the applicant has not provided any evidence to show that, in the present case, the assets acquired by the intervener, as defined in the contested decision, could not constitute, within a period of three years, a business with a market presence to which a market turnover could be attributed.
39      Therefore, the Commission rightly held that the assets acquired by the intervener in the context of the concentration at issue constituted an undertaking or part of an undertaking for the purpose of Regulation No 139/2004, even though Air Berlin had ceased its operations prior to that concentration. Consequently, in so far it is common ground that the intervener acquired only some of Air Berlin’s assets, the Commission rightly found that the intervener had acquired control of an undertaking or part of an undertaking corresponding only to certain Air Berlin assets, and that those assets constituted an undertaking concerned within the meaning of that regulation.
40      In those circumstances, the first part of the applicant’s first plea must be dismissed.
The second part of the first plea, alleging that the Commission should have examined the concentration at issue in each of the relevant O&D markets
41      The applicant complains that the Commission failed to analyse the possible anti-competitive effects of the concentration at issue on the relevant O&D markets.
42      At the outset, it should be observed that, in order to declare a concentration compatible with the internal market, the Commission must, in accordance with Article 2(2) of Regulation No 139/2004, find that the implementation of that concentration would not significantly impede effective competition in the internal market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position.
43      A proper definition of the relevant market is a necessary precondition for any assessment of the effect of a concentration on competition (judgment of 31 March 1998, France and Others v Commission, C‑68/94 and C‑30/95, EU:C:1998:148, paragraph 143). In that regard, it should be observed that the relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of their characteristics, their prices and their intended use (judgment of 23 January 2018, F. Hoffmann-La Roche and Others, C‑179/16, EU:C:2018:25, paragraph 50). In particular, the concept of a relevant market implies that there can be effective competition between the products or services which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products or services forming part of the same market in so far as a specific use of such products or services is concerned (judgment of 23 January 2018, F. Hoffmann-La Roche and Others, C‑179/16, EU:C:2018:25, paragraph 51).
44      However, where it is alleged that the Commission has failed to have regard to a possible competition concern in markets other than those covered by the competitive analysis, it is for the applicant to adduce serious indicia of the genuine existence of a competition concern which, by reason of its effect, should have been examined by the Commission. In order to discharge that burden, the applicant should identify the relevant markets, describe the state of competition in the absence of the merger and indicate what would be the likely effects of a merger given the state of competition in those markets (judgments of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraphs 65 and 66, and of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraphs 174 and 175).
45      In the present case, the Commission noted, in the contested decision, that the airlines were present on the demand side of the market for airport infrastructure services provided by the airports and on the supply side of the markets for passenger air transport services.
46      As regards, more specifically, slots, the Commission noted that, as is clear from Article 2(a) of Regulation No 95/93, they were defined as the permission given by a coordinator to use the full range of airport infrastructure necessary to operate an air service at a coordinated airport, on a specific date and time, for the purpose of landing or take-off. It concluded that slots were necessary inputs for airlines to gain access to the airport infrastructure services provided by airports and, consequently, to provide passenger air transport services from and to those airports. Consequently, in so far as the concentration at issue was aimed primarily at transferring Air Berlin’s slots to the intervener, the Commission considered that the concentration would have effects on the demand side of the markets for airport infrastructure services and on the supply side of the markets for passenger air transport services.
47      In those circumstances, for the purposes of assessing the concentration at issue, the Commission examined whether, as a result of the increment in the number of slots held by the intervener, the latter would have the ability or incentive to foreclose other airlines’ access to airport infrastructure services and, consequently, to the markets for passenger air transport services from or to the airports to which Air Berlin’s slots related.
48      In that regard, in the first place, the applicant submits that, from the point of view of consumers, passenger air transport services are provided on specific routes and airlines’ operations at an airport are conditional on the provision of those services. It concludes that it is not possible to distinguish airlines’ operations at an airport from the provision of those services. Thus, the Commission’s conclusion was based on the incorrect premiss that airlines are the airport operators offering slots, whereas the exchange of such slots between airlines is not their main activity.
49      The applicant also argues that, in the absence of the concentration at issue, the slots held by Air Berlin would have been made available to other airlines, in accordance with Regulation No 95/93. It thus claims that competition is more intense in the O&D markets when an undertaking withdraws from those markets than when the assets of that undertaking are acquired by a competitor, as is the case here. Consequently, the applicant considers that it does not follow from the fact that Air Berlin had ceased its operations in the O&D markets that the concentration at issue would not have any effects on those markets.
50      In that regard, it is true, as the applicant argues in essence, that the definition of O&D markets reflects the perspective of demand according to which consumers of passenger transport services envisage all possible options, including different forms of transport, in order to travel from a city of origin to a city of destination (judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 138).
51      Furthermore, in the contested decision, the Commission accepted the possibility that, in the absence of the concentration at issue, all the slots acquired by the intervener would have been transferred to airlines other than the intervener. In addition, the Commission found that slots were of ‘crucial importance’ for the provision of passenger air transport services in so far as they affected access to airport infrastructure services. It thus recognised that the concentration was likely to have an impact on the various O&D markets from or to the airports to which Air Berlin’s slots related.
52      However, the Commission took the view that an examination of the effects of the concentration at issue on the markets for passenger air transport services from or to the airports to which Air Berlin’s slots related made it possible to understand the effects of that concentration on all the O&D markets from or to those airports. The Commission considered, like the applicant, that although the airlines were present on the demand side of the market for airport infrastructure services, the increment in the number of slots held by the intervener could possibly enable it to foreclose access to those services. It thus examined whether the increment in the number of slots held by the intervener would give the latter the ability or the incentive to foreclose access to airport infrastructure services and, consequently, to the various O&D markets from or to those airports.
53      Therefore, contrary to what the applicant submits, the Commission took account of the possible effects of the concentration at issue on the relevant O&D markets, even though it did not examine each of those markets individually.
54      In the second place, the applicant considers that the Commission should have taken account of the market shares of Air Berlin and the intervener and of the impact of the concentration at issue on their competitive relationship, on their customers and on their competitors in the relevant O&D markets. In that regard, the Commission should have identified the routes operated by Air Berlin which would be taken over by the intervener as a result of the concentration, and the O&D markets on which the concentration was liable to create a monopoly. It adds that the Commission should also have used ‘simulation methods to show demand’ in order to identify the routes on which the intervener would be most likely to affect Air Berlin’s slots. It states, in that regard, that the Commission should have examined the O&D markets from or to Düsseldorf airport (Germany) and the O&D markets from or to the Berlin airports at which, before the concentration at issue, the intervener operated at least one connection per day.
55      More specifically, first, the applicant submits that the concentration at issue was likely to significantly impede effective competition in the Berlin (Germany) – Budapest (Hungary), Berlin – Tel Aviv (Israel), Berlin – Vienna (Austria), Berlin – Zurich (Switzerland), Berlin – Naples (Italy) and Berlin – Copenhagen (Denmark) markets. Following that concentration, the intervener would take over those routes operated by Air Berlin, leaving Air Berlin with a monopoly in the Berlin – Naples and Berlin – Copenhagen markets, and with only one competitor in the abovementioned markets. Secondly, the applicant argues that the intervener could develop its operations in different O&D markets from or to the Berlin airports and from Düsseldorf airport. It infers from this that that concentration could hinder the development of the operations of other airlines at those airports. It states that, in view of the congestion rate at those airports, the fact that a small number of airlines hold a large number of slots could prevent new entrants from gaining access to those airports. Furthermore, such a concentration would have an impact not only on ‘the Berlin market’, but also on routes from the hubs operated by other airlines carrying passengers in transit from the Berlin airports.
56      First, it should be noted, as is apparent from paragraph 50 above, that by assessing the O&D markets, it is possible to identify, among passenger transport services, those which are regarded as interchangeable or substitutable by the consumer. It follows that, where the undertakings concerned by a concentration are airlines which are still in operation, the Commission can identify the O&D markets in which their operations overlap. It can thus assess the competitive impact of that concentration on the provision of passenger transport services in those markets. In particular, it may determine the extent of the changes concerning market shares and concentration levels by calculating the combined post-concentration market share of the undertakings concerned and that of their competitors.
57      However, in the present case, in view of the cessation of Air Berlin’s operations, the latter had withdrawn from all the O&D markets in which it was present, so that its operations and those of the intervener no longer overlapped in any of those markets. Furthermore, in so far as Air Berlin’s slots were not linked to any routes, the Commission rightly noted that they could, therefore, be used by the intervener in O&D markets other than those in which Air Berlin was previously present. It is common ground that the intervener was in a position to redeploy slots in a large number of O&D markets, the applicant acknowledging, moreover, in paragraphs 98 and 100 of the reply, that it was impossible for the Commission to examine all the O&D markets in which Air Berlin slots were likely to be reallocated.
58      It follows that, unlike concentrations involving airlines which are still in operation, it was not certain, in this case, that the concentration at issue would have any effect on competition in the O&D markets in which Air Berlin had been present before it ceased its operations.
59      Secondly, the applicant does not provide any evidence to show that the examination of the effects of the concentration at issue on the markets for airport infrastructure services did not make it possible to identify possible impediments to effective competition in the various O&D markets from or to the airports to which Air Berlin’s slots related.
60      More specifically, although the applicant identifies the O&D markets in which the intervener would either take over the routes previously operated by Air Berlin or would be likely to affect Air Berlin’s slots, it does not claim that the concentration at issue actually constituted a significant impediment to effective competition in those markets. On the contrary, it claims that it is not required to prove the existence of such an impediment, but that it was incumbent on the Commission to demonstrate the absence thereof. Thus, the applicant merely claims that that concentration could constitute such an impediment and that the Commission should have supplemented its analysis, without, however, adducing serious indicia to that effect, within the meaning of the case-law referred to in paragraph 44 above. In particular, the applicant fails to explain how that concentration was likely to significantly impede effective competition in certain O&D markets if the other airlines retained their access to the airport infrastructure services in question.
61      Furthermore, as regards, first the Berlin – Budapest, Berlin – Tel Aviv, Berlin – Vienna, Berlin – Zurich, Berlin – Naples and Berlin – Copenhagen markets, in which, according to the applicant, the intervener had a monopoly or a duopoly as a result of the concentration at issue, it should be noted that that situation arose as a result of Air Berlin’s withdrawal from those markets. However, that withdrawal is the consequence of the cessation of Air Berlin’s operations which, as was pointed out in paragraphs 27 to 34 above, took place prior to, and independently of, the concentration. Consequently, the fact of the intervener having a monopoly or a duopoly in those markets after the implementation of the concentration, cannot, in any event, mean that that concentration could have significantly impeded effective competition in those markets.
62      As regards, secondly, the O&D markets from or to Düsseldorf airport and the Berlin airports identified by the applicant, the applicant argues that the concentration at issue could confer a dominant position on the intervener or would, at the very least, enable it to engage in foreclosure strategies. It submits, in that regard, that the transfer of slots to the intervener at those airports would prevent the other airlines from obtaining a sufficient number of slots and, consequently, from developing their operations. Therefore, as the Commission contends, the applicant acknowledges that the examination of the intervener’s ability, post-concentration, to foreclose access to airport infrastructure services provided by an airport could make it possible to verify that that concentration would not significantly impede effective competition in the O&D markets from or to those airports.
63      Thirdly, as the Commission observes, it is to be inferred from the applicant’s claim that the intervener would use Air Berlin’s slots to increase its offer on routes for which demand is the highest that the intervener would not take over all of the routes previously operated by Air Berlin. In that regard, the applicant states, moreover, that the intervener follows a ‘point-to-point’ model which enables it not to have to synchronise its flights and, thus, easily to reallocate its slots to other routes, depending on market conditions. Consequently, it must be held that the Commission rightly considered that the concentration at issue was likely to have effects on all the O&D markets from or to the airports to which Air Berlin’s slots related, and therefore the examination of the effects of that concentration could not be limited to the O&D markets identified by the applicant.
64      Therefore, the applicant is not justified in claiming that the market definition adopted by the Commission did not make it possible to identify significant impediments to effective competition resulting from the concentration at issue, including in the O&D markets identified by the applicant.
65      Consequently, the second part of the applicant’s first plea and, as a result, that plea in its entirety must be rejected.
The second plea, alleging a manifest error in the assessment of the effects of the concentration at issue
66      The second plea in law is essentially divided into three parts. By the first part, the applicant submits that the Commission infringed the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ 2004 C 31, p. 5; ‘the guidelines on horizontal mergers’) and the Guidelines on the assessment of non-horizontal mergers under that regulation (OJ 2008 C 265, p. 6; ‘the guidelines on non-horizontal mergers’). By the second part, it disputes the congestion rates at the Berlin airports and the slot holdings which the Commission maintained, in the contested decision, that the intervener had at those airports. By the third part, it considers that the concentration at issue could enable the intervener to foreclose access to the markets for passenger air transport services from or to those airports.
67      The Commission and the intervener dispute the applicant’s arguments.
68      It should be noted at the outset that, according to settled case-law, the substantive rules of Regulation No 139/2004, in particular Article 2 thereof, confer on the Commission a certain discretion, especially with regard to assessments of an economic nature, and that, consequently, review by the Courts of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the discretionary margin implicit in the provisions of an economic nature which form part of the rules on concentrations (judgments of 18 December 2007, Cementbouw Handel & Industrie v Commission, C‑202/06 P, EU:C:2007:814, paragraph 53, and of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 85). Accordingly, it is settled case-law that the review by the EU judicature of the complex economic assessments made by the Commission is necessarily confined to verifying whether the 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 assessment of the facts or misuse of powers (judgments of 7 May 2020, BTB Holding Investments and Duferco Participations Holding v Commission, C‑148/19 P, EU:C:2020:354, paragraph 56; of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 137; and of 12 December 2018, Servier and Others v Commission, T‑691/14, EU:T:2018:922, paragraph 1374, under appeal).
69      However, although it is not for the Court to substitute its own economic assessment for that of the Commission, which has the institutional competence to do so, it is apparent from now well-settled case-law that not only must the EU judicature establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgments of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 39, and of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 46).
The first part of the second plea, alleging infringement of the guidelines on horizontal mergers and the guidelines on non-horizontal mergers
70      The applicant submits that the Commission wrongly applied the guidelines on non-horizontal mergers in place of the guidelines on horizontal mergers. It adds that, had the guidelines on non-horizontal mergers been applicable, the Commission also infringed those guidelines.
71      In the first place, it should be observed that, according to paragraph 5 of the guidelines on horizontal mergers, horizontal mergers are those in which the undertakings concerned are actual or potential competitors in the same relevant market. However, footnote 6 states that those guidelines do not cover the assessment of the effects which a merger may have on competition in other markets, including vertical effects. In that regard, according to paragraph 4 of the guidelines on non-horizontal mergers, vertical mergers involve companies operating at different levels of the supply chain.
72      In the present case, the Commission made particular reference, in the contested decision, to the guidelines on non-horizontal mergers. On the basis of paragraph 25 of those guidelines, it held that the fact that the intervener’s average slot holding at the Berlin airports would be less than 30% as a result of the concentration at issue was an indication that that concentration would not significantly impede effective competition in the markets for passenger air transport services from or to the airports to which Air Berlin’s slots related. However, it acknowledged that the intervener’s slot holding could exceed that threshold at certain times.
73      In that regard, the applicant argues that, in so far as there is a horizontal overlap between the operations of Air Berlin and those of the intervener at the Berlin airports, the Commission should have applied the guidelines on horizontal mergers. Since, as a result of the concentration at issue, the intervener’s slot holding would ‘significantly’ exceed 25% at those airports, that concentration is not compatible with the internal market under those guidelines.
74      It should be noted, as was mentioned in paragraphs 45 to 47 above, that, in the contested decision, the Commission considered that the concentration at issue would have effects, first, on the markets for passenger air transport services from and to the airports to which Air Berlin’s slots related and, secondly, on the markets for airport infrastructure services provided by those airports. However, as is apparent from paragraph 72 above, the Commission applied the guidelines on non-horizontal mergers only for the purposes of assessing the possible effects of that concentration on the relevant markets for passenger air transport services. It thus made no reference to those guidelines to assess the possible effects of the concentration on the relevant airport infrastructure markets.
75      As regards, specifically, the relevant markets for passenger air transport services, first, it should be noted that, in view of the fact that Air Berlin had ceased operations, it was no longer present in any of those markets. Therefore, as stated in paragraph 57 above, Air Berlin’s operations could no longer overlap with those of the intervener in those markets. Consequently, it should be noted that, in the light of paragraph 5 of the guidelines on horizontal mergers, the Commission rightly considered that those guidelines were not applicable for the purposes of assessing the effects of the concentration at issue on those markets.
76      Secondly, as is apparent from paragraph 46 above and as the applicant also acknowledges, the Commission correctly observed that the allocation of slots allowed access to airport infrastructure services and that slots were therefore necessary inputs for the provision of passenger air transport services. There is therefore a vertical relationship between, on the one hand, the allocation of slots upstream in the supply chain, for the purposes of the guidelines on non-horizontal mergers, and, on the other hand, the supply of passenger air transport services downstream in that supply chain.
77      In those circumstances, the applicant is not justified in criticising the Commission for referring to the guidelines on non-horizontal mergers in order to assess the possible vertical effects of the transfer of Air Berlin slots in the markets for passenger air transport services from or to the airports to which those slots related.
78      In the second place, it follows from paragraphs 24 and 27 of the guidelines on non-horizontal mergers that market share and concentration levels are relevant factors for the purposes of assessing the market power of merging parties. More specifically, according to paragraph 25 of those guidelines, the Commission is unlikely to find competition concerns in non-horizontal mergers where the post-merger market share of the new entity in each of the markets concerned is below 30% and the post-merger Herfindahl-Hirschmann Index (HHI) is below 2 000.
79      The applicant complains that the Commission infringed paragraph 25 of the guidelines on non-horizontal mergers in so far as it did not refer to HHI in the contested decision, and the intervener’s slot holdings would exceed 30% as a result of the concentration at issue.
80      However, as stated in paragraph 27 of the guidelines on non-horizontal mergers, the fact of presenting the market share and concentration levels referred to in paragraph 25 of those guidelines does not give rise to a presumption of the existence of competition concerns. Paragraph 25 merely describes a situation in which it is unlikely that the Commission would find competition concerns. However, it does not follow from that paragraph that that situation is the only one in which such concerns would not arise.
81      More specifically, it should be noted that the market share and concentration levels referred to in paragraph 25 of the guidelines on non-horizontal mergers relate to the determination of the market power of the undertakings concerned post-merger, and that paragraph 27 of those guidelines states that the existence of a significant degree of market power in at least one of the markets concerned is a necessary condition for a finding of competitive concerns, but is not a sufficient condition. Paragraph 32 of the guidelines, to which, inter alia, paragraph 27 of those guidelines and the contested decision refer, thus states that foreclosure of the input market also presupposes that three cumulative conditions are met, namely, first, that the undertakings concerned have the ability, post-merger, to foreclose access to inputs, secondly, that they have the incentive to do so and, thirdly, that the foreclosure of that access would have a significant detrimental effect on competition downstream.
82      In the present case, it follows from paragraph 14 above that the Commission considered that none of the three conditions referred to in paragraph 32 of the guidelines on non-horizontal mergers was satisfied as regards the markets for passenger air transport services from or to the Berlin airports. Consequently, the fact that the intervener’s slot holdings at those airports may, at certain times, exceed the threshold referred to in paragraph 25 of those guidelines and that the Commission did not verify whether the HHI was below the threshold referred to in that paragraph does not permit the inference that the Commission infringed those guidelines. Moreover, as regards the HHI, it should be noted, as the Commission did, that the applicant itself acknowledges in paragraph 82 of Annex C.2 to the reply that ‘the practical application of the HHI in merger control cases in the air transport sector is marginal’.
83      Therefore, the applicant is not justified in claiming that the Commission infringed the guidelines on horizontal mergers or the guidelines on non-horizontal mergers.
84      Consequently, the first part of the applicant’s second plea must be rejected.
The second part of the second plea, alleging incorrect slot holdings and congestion rates as regards the Berlin airports
85      The applicant disputes the intervener’s slot holdings and the congestion rates taken into account by the Commission in the contested decision with regard to the Berlin airports.
86      In the first place, the applicant complains that the Commission relied exclusively on the data submitted by the intervener for the purposes of calculating the intervener’s slot holdings as a result of the concentration at issue, whereas it should also have collected data from the coordinators of the Berlin airports. It adds that the Commission underestimated the intervener’s slot holdings at those airports.
87      First, it should be noted that, in view of the need for speed and the tight deadlines to which the Commission is subject in the procedure for the control of concentrations, the Commission cannot be required, in the absence of evidence indicating that the information provided is inaccurate, to carry out checks in respect of all the information it receives. Although the diligent and impartial examination which the Commission is obliged to carry out in the context of that procedure does not permit it to base itself on facts or information which cannot be regarded as accurate, the abovementioned need for speed presupposes, however, that it cannot itself verify down to the last detail the authenticity and reliability of all the information it receives, since the procedure for the control of concentrations is based, of necessity and to a certain extent, on trust (judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 184).
88      It should be observed in that regard that, in the context of the legislation on merger control, various measures have been provided for in order to discourage and punish the communication of inaccurate or misleading information. Not only are the notifying parties subject, under Article 4(1) and Article 6(2) of Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2004 L 133, p. 1, and corrigendum OJ 2004 L 172, p. 9), to an express obligation to make a full and honest disclosure to it of the facts and circumstances which are relevant for the decision – that obligation being confirmed by Article 14 of Regulation No 139/2004 – but the Commission may also revoke the decision on compatibility, on the basis of Article 6(3)(a) and Article 8(6)(a) of Regulation No 139/2004, if it is based on incorrect information for which one of the undertakings is responsible or where it has been brought about by deceit (judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 185).
89      In the present case, it is apparent from the contested decision that the Commission took into account data which were submitted by the intervener and which were taken from, inter alia, a database containing data from the International Air Transport Association (IATA), as it also confirmed at the hearing. In view of the existence of several databases accessible inter alia to airlines, the reliability of which is not as such called into question by the applicant, the Commission was justified in finding that the intervener was in a position to submit reliable data and, consequently, in using the data submitted by the latter in its assessment.
90      Secondly, it is important, in any event, to note that in the contested decision, Commission stated that it did not rely exclusively on the data submitted by the intervener. It stated that it had checked that data with the managers and coordinators of the airports concerned.
91      In addition, the applicant’s arguments are not sufficient to call into question the accuracy of the data on which the Commission relied. In that regard, it should be noted that the applicant does indeed submit that, according to a database other than that mentioned in the contested decision, the intervener’s slot holding at the Berlin airports during the summer 2018 IATA planning period (season) would be 30.05% on average, and 23.6% on average during the winter 2017/2018 IATA season. It thus considers that the Commission underestimated the intervener’s slot holding in so far as it stated in the contested decision that the intervener’s slot holding at the Berlin airports would be less than 25% on average in the summer 2018 IATA season, and less than 20% in the winter 2017/2018 IATA season. However, the data on which the Commission relied were estimates available at the time of adoption of the contested decision. In that regard, it is appropriate to note that, as contended in essence by the Commission, the applicant does not specify in its pleadings the date of the data on which it relies. The applicant confirmed at the hearing, however, that those data post-dated the contested decision. Consequently, the fact that the data submitted by the applicant do not correspond exactly to the estimates on which the Commission relied does not necessarily mean that those estimates could not be regarded as sufficiently reliable at the date of the contested decision.
92      Furthermore, it should be noted that the applicant calculates the intervener’s slot holding on the basis of all the slots allocated to the airlines, thereby excluding slots which are not allocated. First, in the contested decision, the Commission calculated the intervener’s slot holding on the basis of all the slots at the airports concerned. Secondly, it noted that the average congestion rates at the Berlin airports in the summer 2018 IATA season and the winter 2017/2018 IATA season would be only 54% and 46% respectively. Thus, according to the IATA seasons in question, between 46% and 54% of the slots at the Berlin airports were not allocated. Consequently, it cannot be inferred from the mere fact that the slot holdings alleged by the applicant are greater than the slot holdings taken into account on by the Commission that the latter were incorrect.
93      Lastly, although the applicant seeks to criticise the Commission for not having specified the ‘econometric model’ used for its assessment, the Commission described the calculations relating to the intervener’s slot holdings and to the congestion rates at the airports concerned in paragraphs 110, 111 and 114 of the contested decision.
94      In the second place, the applicant argues that the Commission wrongly considered that the Berlin airports were open only between 03.00 UTC (Coordinated Universal Time) and 21.59 UTC in the summer IATA seasons, when Berlin-Schönefeld airport was open 24 hours, and Berlin-Tegel airport was open between 04.00 UTC and 20.59 UTC. Given the lack of slots, certain airlines use night slots. Therefore, that error on the part of the Commission is such as to vitiate the assessment of the effects of the concentration at issue.
95      In that regard, it should be noted that, in the contested decision, the Commission stated that it took into account an approximation of the Berlin airports’ opening hours. It assumed that those airports had the same opening hours for the purposes of calculating the congestion rates and the intervener’s post-concentration slot holdings at those airports, namely between 03.00 UTC and 21.59 UTC during the summer IATA seasons, although that did not accurately reflect reality. It stated, however, that the number of slots used at Berlin-Schönefeld airport between 21.59 UTC and 03.00 UTC was negligible.
96      In those circumstances, first, it should be noted that the applicant merely mentions the possibility that airlines could choose to use Berlin-Schönefeld airport between 21.59 UTC and 03.00 UTC during the summer IATA seasons. However, it does not adduce any evidence to show that the number of slots at that airport during that period was insufficient to meet all demand. Secondly, it should be noted that the applicant does not explain how the effect of that approximation on the Commission’s calculations was sufficiently significant to call into question the latter’s assessment of the effects of that concentration. More specifically, it should be noted, as contended by the Commission, that that approximation led to both the congestion rates at the Berlin airports and the intervener’s slot holdings at those airports being overstated, which was also acknowledged by the applicant at the hearing. It cannot therefore be inferred from that approximation that the Commission committed a manifest error in the assessment of the effects of the concentration at issue.
97      In the third place, the applicant expresses doubts as to the Berlin airport congestion rates taken into account by the Commission in so far as it is not apparent from the contested decision that the Commission took into account, in addition to the use of the runways, terminal capacity and the number of parking stands, and secondly, the manager of Berlin-Tegel airport informed it that the number of parking stands was not sufficient to meet all demand.
98      In that regard, the Commission held, in the contested decision, that it was not necessary to distinguish between access to terminals and access to parking stands among the various airport services which are essential to the provision of passenger air transport services, in so far as the allocation of slots necessarily included access to all those services.
99      In those circumstances, first, it is sufficient to observe that, although the applicant asserts that the Commission should have taken account of terminal capacity at the airports concerned, it has produced no evidence to show that the capacity of the Berlin airports was limited by the capacity of their respective terminals.
100    Secondly, the applicant produced an email from the manager of Berlin-Tegel airport of 19 February 2018 concerning the allocation of parking stands at that airport. In that email, the manager explained, first, that ‘Air Berlin’s insolvency in the summer of 2017’ had made it possible to free up capacity at that airport, secondly, that the requests made by airlines for access to overnight parking stands had significantly increased compared to previous seasons, so that capacity at that airport was no longer sufficient and, thirdly, that a new procedure for allocating those stands with effect from the 2018 ‘summer season’ would be put in place. It also states that, where appropriate, airlines could be contacted directly in order to further improve their coordination.
101    However, it should be noted that the applicant does not explain how overnight parking stands at Berlin-Tegel airport constitute inputs which, like slots, are necessary in order to provide passenger air transport services from or to the Berlin airports. Furthermore, the email produced by the applicant refers not only to the introduction of a new procedure for the allocation of overnight parking stands, but also to the fact that it would still be possible to increase coordination between airlines if that proved necessary. Consequently, it cannot be inferred from that email alone that the number of parking stands is such as to limit the provision of passenger air transport services from or to Berlin-Tegel airport.
102    In those circumstances, the applicant is not justified in claiming that the calculation of the congestion rate at Berlin-Tegel airport necessarily had to take terminal capacity and parking stands into account.
103    Consequently, it must be held that the applicant is not justified in criticising the Commission for having taken into account incorrect slot holdings and congestion rates, and that the second part of the applicant’s second plea must therefore be rejected.
The third part of the second plea, alleging that the concentration at issue could allow the intervener to foreclose access to the markets for passenger air transport services from or to the Berlin airports
104    The applicant submits that the concentration at issue produces anti-competitive effects. According to the applicant, in the absence of that concentration, a significant proportion of the slots at the Berlin airports which were transferred to the intervener would have been allocated to other airlines. It argues, in that regard, that Berlin-Tegel airport is a coordinated airport within the meaning of Regulation No 95/93. Consequently, first, it considers that, pursuant to Article 10 of that regulation, up to 50% of the slots previously held by Air Berlin would have been allocated to ‘new entrants’ like the applicant, which would have reduced the barriers to entry to the relevant markets. Secondly, it submits that, in view of the intervener’s significant slot holdings and the congestion rate at the Berlin airports, the intervener could adopt various foreclosure strategies.
105    In the first place, it should be observed that the prospective analysis which the Commission must carry out consists of an examination of how a concentration might alter the factors determining the state of competition in a given market in order to establish whether it would give rise to a serious impediment to effective competition. Such an analysis makes it necessary to envisage various chains of cause and effect with a view to ascertaining which of them are the most likely (judgment of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 43).
106    In this case, the Commission found, in the contested decision, that, in the absence of the concentration at issue, Air Berlin’s slots could have been returned to the pool referred to in Article 10 of Regulation No 95/93. In that regard, it stated, that, in accordance with Article 10(6) of that regulation, 50% of those slots were to be allocated to new entrants, unless requests by new entrants amounted to less than 50% of those slots. Consequently, Air Berlin’s would have been transferred to the other airlines which either already held sufficient slots at the airports concerned, or wished to enter the markets for passenger air transport services from or to those airports. Thus, the intervener’s slot holdings at Berlin-Tegel airport could have increased in the absence of the concentration at issue.
107    However, the Commission acted on the basis of the assumption that all the slots which were the subject of that concentration would have been transferred to airlines other than the intervener. Consequently, for the purposes of its assessment, the Commission applied an increment to the slot holding brought about by the concentration at issue which was greater than that which should have been applied in the applicant’s view, and according to which some of Air Berlin’s slots would be returned to the pool referred to in Article 10 of Regulation No 95/93 in the absence of that concentration.
108    In the second place, it should be observed that, in accordance with Article 2(2) and (3) of Regulation No 139/2004, only those concentrations which would significantly impede effective competition in the internal market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, are to be declared incompatible with the internal market. Consequently, as the Commission rightly contends, the fact that a concentration produces anti-competitive effects is not, in itself, sufficient for that concentration to be regarded as incompatible with the internal market, provided that it does not significantly impede effective competition in the internal market or in a substantial part of it.
109    In those circumstances, the mere fact that, in the absence of the concentration at issue, some of the slots at the Berlin airports transferred to the intervener could have been allocated to other airlines, thus reducing the barriers to entry for those airlines as regards those airports, does not, as such, demonstrate that that concentration was likely to significantly impede effective competition in the internal market or in a substantial part of it.
110    In the third place, it should be noted that the Commission examined the intervener’s ability to foreclose access to airport infrastructure services and, consequently, to the markets for passenger air transport services from or to the Berlin airports.
111    As is apparent from paragraph 13 above, the Commission took into account in that regard not only the intervener’s slot holding and the effect of the concentration at issue on that slot holding, but also the congestion at those airports. It is true that the Commission found that, as is clear from Article 3(5) of Regulation No 95/93, the capacity of coordinated airports was not sufficient to meet the demand of air carriers on the basis of voluntary cooperation between them. However, it noted that an airport could be classified as a coordinated airport within the meaning of that regulation without all of the slots at that airport being used. It thus calculated the congestion rate at the airports concerned by dividing, for each hour that the airports are open, the number of slots allocated to all airlines by the total number of slots available. It considered, without being challenged on that point by the applicant, that the existence of a significant impediment to effective competition could, in principle, be ruled out where the average congestion rate at an airport was below 60%.
112    More specifically, the Commission noted, first of all, that the share of slots held by the intervener as a result of the concentration at issue would be, first, less than 25% on average, secondly, less than 40% at peak times (namely between 10.00 and 10.59 UTC during the summer 2018 IATA season, and between 08.00 and 08.59 UTC during the winter 2017/2018 IATA season), and thirdly, less than 50% when its slot holding was at its highest (namely on Fridays between 14.00 and 14.59 UTC during the abovementioned summer season and on Fridays between 15.00 and 15.59 UTC during the abovementioned winter season).
113    Next, the Commission found, first, that the average congestion rate would be 54% during the summer 2018 IATA season and 46% during the winter 2017/2018 IATA season and, secondly, that the highest congestion rates would be 73% between 10.00 and 10.59 UTC during the abovementioned summer season and 62% between 08.00 and 08.59 during the abovementioned winter season.
114    Lastly, the Commission noted that, as is apparent from paragraphs 112 and 113 above, the time at which the intervener’s slot holding would be highest did not correspond to the time at which the congestion rate had been highest and that, in any event, even when the congestion rate was highest, there was still sufficient capacity at the Berlin airports to allow entry and expansion by competitors.
115    The applicant submits that, in view of its significant slot holding and the congestion rate, in particular at the Berlin airports, the intervener could adopt various foreclosure strategies. Assuming that the number of Air Berlin’s seats and passengers are correlated with the slots transferred to the intervener, the applicant considers that, as a result of the concentration at issue, the intervener would acquire up to 40% of the total seat capacity and 40% and 50%, respectively, of the passengers in the winter 2017/2018 IATA season and the passengers in the summer 2018 IATA season. It infers from this that the intervener could, first, increase the number of flights during the flight schedules planned by a new entrant or on the routes already operated by that entrant so as to render the latter’s business less profitable, secondly, use its slots more effectively by redeploying them, if necessary, on its various routes and, thirdly, offer more advantageous loyalty schemes to its customers. It states that those are risks which it is not for the applicant to prove, but which the Commission should have examined.
116    In that regard, first, contrary to what the applicant suggests, the Commission examined whether the increase in the number of slots held by the intervener could allow the latter to limit other airlines’ access to the markets for passenger air transport services from or to the airports concerned. However, it held that, in the present case, the intervener would not have the ability to foreclose other airlines’ access to those markets.
117    Furthermore, in that regard, it should be noted that the applicant merely refers to the intervener’s market shares at Berlin-Tegel airport, whereas, as noted in paragraph 12 above, the concentration at issue would be capable of having an impact on the markets for passenger air transport services from or to that airport only if the latter and Berlin-Schönefeld airport formed part of the same geographic market. It thus fails to explain how the foreclosure strategies it refers to could actually be implemented in respect of the Berlin airports, taken together, particularly given that the intervener’s average slot holding is less than 25%, and that the average congestion rate of those airports is below the rate of 60% mentioned in paragraph 111 above. More specifically, it does not state why a new entrant could not, in view of that congestion rate, be allocated as many slots as necessary in order to be able to provide passenger air transport services from or to those airports.
118    Secondly, as the Commission correctly observed in paragraph 16 of its guidelines on non-horizontal mergers, the fact that competitors may be harmed because a merger creates efficiencies cannot, in itself, constitute an impediment to competition. However, the applicant does not explain why the intervener’s more efficient use of its slots and the introduction of more advantageous loyalty schemes for its customers do not reflect efficiencies which, while they may harm competitors, would not constitute a significant impediment to effective competition.
119    Thirdly, it is important to note that, as mentioned in paragraph 14 above, the Commission relied, in particular, on three separate grounds for declaring the concentration at issue to be compatible with the internal market as regards the Berlin airports. It considered not only not only that the intervener would not have the ability to foreclose access to the markets for passenger air transport services from or to the Berlin airports, but also that the intervener would not have the incentive to foreclose that access, and that the implementation of any foreclosure strategy would not have the effect of reducing competition on those markets. Since those second and third grounds of the contested decision are not disputed by the applicant, the applicant’s argument relating to the intervener’s alleged ability to foreclose that access must, in any event, be rejected as ineffective.
120    Therefore, the Commission did not commit a manifest error of assessment in finding that the concentration at issue would not significantly impede effective competition in the markets for passenger air transport services from or to the Berlin airports.
121    Accordingly, the third part of the applicant’s second plea and, as a result, that plea in its entirety, must be rejected.
The third and fourth pleas, alleging failure to examine the potential efficiencies generated by the concentration at issue and the absence of commitments imposed by the Commission
122    The applicant submits that the Commission infringed the guidelines on horizontal mergers by failing to examine the potential efficiencies which could be generated by the concentration at issue. Furthermore, it criticises the Commission for not imposing on the intervener remedies, in the form of commitments, designed to permit the use of some of the intervener’s slots by other airlines.
123    The Commission and the intervener dispute the applicant’s arguments.
124    In the first place, it should be noted that – as indeed is apparent from the wording of Section 9 of Form CO relating to the notification of a concentration pursuant to Regulation No 139/2004, set out in Annex I to Regulation No 802/2004, and paragraph 78 of the guidelines on horizontal mergers, to which the footnote to paragraph 21 of the guidelines on non-horizontal mergers makes particular reference – the efficiencies generated by the merger must have pro-competitive effects benefiting consumers. Recital 29 of Regulation No 139/2004, to which the applicant refers, thus states that the efficiencies generated by a concentration may counteract the effects on competition, and in particular the potential harm to consumers, which it might otherwise have had and that, as a result, the concentration would not significantly impede effective competition in the internal market or in a substantial part of it.
125    Similarly, it should be observed that in circumstances such as those of the present case, the commitments given by the undertakings concerned are intended to dispel any serious doubts as to whether the concentration would significantly impede effective competition in the internal market or in a significant part of it, in particular by creating or strengthening a dominant position (judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 297).
126    In the present case, it should be noted that the Commission held, on the basis of Article 6(1)(b) of Regulation No 139/2004, that the concentration at issue was not liable to constitute a significant impediment to effective competition in the internal market or in a substantial part of it, without there being any need for the intervener to put forward efficiencies or offer commitments. Consequently, since, as mentioned in paragraph 120 above, the applicant is not justified in claiming that that concentration is manifestly liable to constitute such an impediment, there was no need for the Commission to examine efficiencies that could have counteracted the concentration’s effects on competition or the commitments which could have prevented that impediment.
127    In the second place, it is clear from recital 29 of Regulation No 139/2004 and from paragraphs 84 to 87 of the guidelines on horizontal mergers, referred to by the applicant, that it is for the parties to the concentration to put forward any efficiencies generated by that concentration. Similarly, it is clear from Article 6(2) of that regulation and from Article 19 of Regulation No 802/2004 that it is for the parties to the concentration, where appropriate, to offer modifications to that concentration in the form of commitments. Therefore, the applicant cannot criticise the Commission for not having sought to establish the existence of efficiencies not previously put forward by the intervener or imposed commitments not previously offered by the intervener.
128    In those circumstances, the applicant’s third and fourth pleas must be rejected.
The fifth plea, alleging failure to take account of the rescue aid in the assessment of the effects of the concentration at issue
129    The applicant submits that the rescue aid was granted to Air Berlin for the purpose of implementing the concentration at issue. In that regard, it argues that that aid was not compatible with the internal market, that certain information relating to that aid was not publicly available and that the same aid prevented other ‘more efficient operators’ from acquiring the assets of Air Berlin. Furthermore, it considers that that aid changed Air Berlin’s funding capacity, which the Commission should have taken into account, in accordance with Article 2(1)(b) of Regulation No 139/2004.
130    The Commission and the intervener dispute the applicant’s arguments.
131    In that regard, in the first place, it is apparent from the decision declaring the rescue aid compatible with the internal market that the purpose of that aid was, inter alia, to achieve the sale of Air Berlin assets in an ‘orderly’ manner with the least negative consequences for its staff.
132    However, first, it cannot be inferred from the alleged incompatibility of the rescue aid with the internal market, or from the fact that certain information relating to that aid is not publicly accessible, that the specific objective of that aid was the acquisition, by the intervener, of the Air Berlin assets concerned by the concentration at issue.
133    Secondly, the applicant does not claim, let alone demonstrate, that the ‘more efficient operators’ to which it refers could not make a bid to acquire Air Berlin’s assets in the context of the latter’s insolvency proceedings.
134    Thirdly, as mentioned in paragraph 109 above, the mere fact that, in the absence of the concentration at issue, the Air Berlin slots transferred to the intervener would, at least in part, have been allocated to the intervener’s competitors is not sufficient, in itself, to support the conclusion that that concentration significantly impedes effective competition and should therefore have been declared incompatible with the internal market by the Commission.
135    In the second place, it follows from Article 2(1)(b) of Regulation No 139/2004 that, when assessing concentrations, the Commission must take into account, inter alia, the market position of the undertakings concerned and their economic and financial power. However, the applicant has not provided any evidence to show that the amount of the loan granted to Air Berlin under the rescue aid formed part of the assets acquired by the intervener in the context of the concentration at issue.
136    In those circumstances, it has not been established that the amount of the loan granted to Air Berlin formed part of the concentration at issue, and it must therefore be held that the rescue aid was not such as to affect the market position or the economic and financial power of the Air Berlin assets acquired by the intervener. That aid was therefore not capable of altering the Commission’s assessment of the concentration.
137    Consequently, the applicant’s fifth plea must be rejected.
The sixth plea, alleging infringement of Article 296 TFEU
138    The applicant submits that the Commission infringed Article 296 TFEU because the contested decision contains an inadequate statement of reasons. In particular, it criticises the Commission for having failed to carry out a full analysis of the facts of the concentration at issue. It thus argues that the Commission failed to examine the effects of that concentration on the O&D markets, that it carried out only a ‘cursory’ analysis of the intervener’s possible interest in adopting a foreclosure strategy and of the effects of such a strategy on competition, that it did not verify whether the efficiencies generated by the concentration at issue counteracted the anti-competitive effects produced by it, that it did not examine whether remedies would ultimately eliminate the significant impediment to effective competition resulting from that concentration and, lastly, that it did not take into account the rescue aid.
139    The Commission and the intervener dispute the applicant’s arguments.
140    According to Article 296 TFEU, legal acts adopted by the European Union institutions are to state the reasons on which they are based.
141    In that regard, it should be observed that the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. Accordingly, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63; of 22 June 2004, Portugal v Commission, C‑42/01, EU:C:2004:379, paragraph 66; and of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 79).
142    Thus, the Commission does not infringe its obligation to state reasons if, when exercising its power to examine concentrations, it does not include precise reasoning in its decision as to the appraisal of a number of aspects of the concentration which appear to it to be manifestly irrelevant or insignificant or plainly of secondary importance to the appraisal of the concentration (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 64). Such a requirement would be difficult to reconcile with the need for speed and the short timescales which the Commission is bound to observe when exercising its power to examine concentrations and which form part of the particular circumstances of proceedings for control of those concentrations. It follows that where the Commission declares a concentration to be compatible with the common market on the basis of Article 6(1)(b) of Regulation No 139/2004, the requirement to state reasons is satisfied when that decision clearly sets out the reasons for which the Commission considers that the concentration in question, where appropriate following modification by the undertakings concerned, does not significantly impede effective competition in the common market or in a substantial part of it, in particular by creating or strengthening a dominant position (see, by analogy, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 100).
143    In the present case, first, as is apparent from paragraphs 27 and 46 above, the Commission set out, in the contested decision, the reason why it had not assessed the concentration at issue in each of the relevant O&D markets. It explained that, having ceased its activities prior to, and independently of, the concentration at issue, Air Berlin was no longer active in any of the O&D markets in which it had previously been present. It also argued, on the basis that Air Berlin’s slots were not allocated to any particular O&D market, that it was appropriate to assess the effects of the concentration on the markets for passenger air transport services from or to the airports to which those slots related.
144    Secondly, the Commission’s assessment of the intervener’s incentive to foreclose access to airport infrastructure services at the Berlin airports was superfluous, since the Commission had previously considered that the intervener would probably not have the ability to foreclose that access. The Commission also considered that, although a dominant airline could indeed have an incentive to foreclose that access, it was noteworthy, in the present case, that there was a sufficient number of slots still available to other airlines and that there was a competitor at Berlin-Tegel airport which would have a slot holding at that airport comparable to that of the intervener following the concentration at issue. Furthermore, the Commission added that it had found no evidence during its market investigation that the intervener had previously engaged in any conduct with the aim of foreclosing a market.
145    Thirdly, as is apparent from paragraph 126 above, it was not necessary for the Commission to assess potential efficiencies generated by the concentration at issue or to consider any commitments that the intervener might have offered. Similarly, as is apparent from paragraph 137 above, it was not necessary for the Commission to take into account the rescue aid for the purposes of assessing the concentration at issue. It follows that those matters, referred to by the applicant, could rightly appear to the Commission to be manifestly irrelevant, and therefore that, in the light of the case-law referred to in paragraph 142 above, it cannot be accused of having infringed its obligation to state reasons by not mentioning them in the contested decision.
146    In those circumstances, it cannot be held that the contested decision is vitiated by a failure to state reasons, and therefore the applicant’s sixth plea must be rejected.
The applicant’s request for the adoption of measures of organisation of procedure
147    In the application, pursuant to Article 88 of the Rules of Procedure, the applicant requested the Court to adopt measures of organisation of procedure relating to the rescue aid, the cessation of Air Berlin’s operations and the sale of its assets.
148    However, first, contrary to Article 88(2) of the Rules of Procedure, the applicant did not state in a sufficiently detailed manner, the reasons justifying all the measures of organisation of procedure which it was requesting and, secondly, as is apparent in particular from paragraphs 28 to 34 and 132 to 136 above, those measures of organisation of procedure are not necessary in order to rule on the action.
149    Consequently, there is no need to grant the request for measures of organisation of procedure made by the applicant.
150    It follows from the foregoing that the action must be dismissed in its entirety, without there being any need to rule on the admissibility of Annex C.2 to the reply, which is disputed by the Commission.
Costs
151    Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by the Commission and the intervener.
On those grounds,
THE GENERAL COURT (Tenth Chamber, Extended Composition)
hereby:
1.      Dismisses the action;
2.      Orders Polskie Linie Lotnicze ‘LOT’ S.A. to pay the costs.
Van der Woude
Kornezov
Buttigieg
Kowalik-Bańczyk
Hesse
Delivered in open court in Luxembourg on 20 October 2021.
[Signatures]
*      Language of the case: Polish.