EN Official Journal of the European Union C 201/7

Final report of the Hearing Officer (1)

Continental/United/Lufthansa/Air Canada

(AT.39595)

2013/C 201/08

(1) This proceeding concerns the agreement concluded between Air Canada, Continental Airlines, Deutsche Lufthansa and United Air Lines, in relation to the establishment of a revenue-sharing joint venture on transatlantic routes (‘A++ Agreement’) (2).

(2) The A++ Agreement covers all passenger air transport services of the airlines on routes between Europe and North America. The airlines agree to cooperate on key parameters of competition, such as pricing, capacity, schedules and marketing. The joint venture does not qualify as ‘full function’ and therefore, the agreement is subject to Article 101 TFEU.

(3) On 8 April 2009, the Commission decided to open proceedings with a view to adopting a decision under Chapter III of Regulation (EC) No 1/2003 (3) in relation to the A++ Agreement. On 10 October 2012, the Commission adopted a preliminary assessment pursuant to Article 9(1) of Regulation (EC) No 1/2003 and notified it to the carriers by letter of 10 October 2012. In the preliminary assessment, the Commission took the view that the cooperation raised concerns as to its compatibility with Article 101 TFEU in relation to the Frankfurt–New York route for premium passengers.

(4) On 11 December 2012, the carriers submitted commitments in order to meet the Commission's concerns. On 21 December 2012, the Commission published a notice in the Official Journal of the European Union in accordance with Article 27(4) of Regulation (EC) No 1/2003, summarising the case and the commitments and inviting third parties to submit comments on the proposal (4).

(5) In response to the notice, the Commission received observations from four interested third parties. Thereafter, the carriers submitted a revised commitment proposal. Pursuant to the proposed commitments, for a period of 10 years, the carriers commit themselves to take a number of measures, i.e. slot releases, fare combinability agreements, pro-rate agreements and opening of their frequent flyer programmes, to facilitate rivals' entry into the Frankfurt–New York route.

(6) In its decision pursuant to Article 9(1) of Regulation (EC) No 1/2003, the Commission makes the commitments proposed by the airlines binding upon them and concludes that, in light of the commitments offered, there are no longer grounds for action on its part, and thus the proceedings in this case should be brought to an end.

(7) I did not receive any request or complaint from any party to the proceedings in the present case (5). In view thereof, I consider that the effective exercise of the procedural rights of all parties in this case has been respected.

Brussels, 8 May 2013. Michael ALBERS

(1) Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29).

(2) Continental Airlines and United Air Lines merged in 2010. However, the merger between the two carriers was completed only on 31 March 2013. Continental Airlines has been a party to the proceeding until the date of the merger's completion.

(3) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(4) Communication of the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case COMP/39.595 — Continental/United/Lufthansa/Air Canada (notified under document C(2012) 9787) (OJ C 396, 21.12.2012, p. 21).

(5) In accordance with Article 15(1) of Decision 2011/695/EU, parties to the proceedings offering commitments pursuant to Article 9 of Regulation (EC) No 1/2003 may call upon the hearing officer at any stage of the procedure in order to ensure the effective exercise of their procedural rights.