JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

13 May 2015 ( *1 )

‛Competition — Concentrations — Air transport — Decision declaring a concentration to be compatible with the common market — Assessment of the effects of the transaction on competition — Commitments’

In Case T‑162/10,

Niki Luftfahrt GmbH, established in Vienna (Austria), represented by H. Asenbauer and A. Habeler, lawyers,

applicant,

v

European Commission, represented initially by S. Noë, R. Sauer and N. von Lingen, and subsequently by S. Noë, R. Sauer and H. Leupold, acting as Agents,

defendant,

supported by

Republic of Austria, represented initially by C. Pesendorfer, E. Riedl and A. Posch, and subsequently by C. Pesendorfer and M. Klamert, acting as Agents,

by

Deutsche Lufthansa AG, established in Cologne (Germany), represented initially by S. Völcker and A. Israel, and subsequently by S. Völcker and J. Orologas, lawyers,

and by

Österreichische Industrieholding AG, established in Vienna, represented by H. Kristoferitsch, P. Lewisch and B. Kofler-Senoner, lawyers,

interveners,

APPLICATION for annulment of Commission Decision C(2009) 6690 final of 28 August 2009 declaring a concentration to be compatible with the common market and the EEA Agreement (Case No COMP/M.5440 — Lufthansa/Austrian Airlines),

THE GENERAL COURT (Eighth Chamber),

composed of D. Gratsias, President, M. Kancheva (Rapporteur) and C. Wetter, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 26 June 2014,

gives the following

Judgment

Facts giving rise to the dispute

1. The undertakings concerned

1 Deutsche Lufthansa AG (‘Lufthansa’) is Germany’s largest airline. It provides scheduled passenger and cargo transport and related services. In 2008 Lufthansa had 272 aircraft, with which it carried 45000000 passengers to more than 200 destinations in 85 countries. Its hubs are Frankfurt am Main International Airport (Germany) and Munich airport (Germany) and it also has a base at Düsseldorf airport (Germany). Lufthansa also controls Swiss International Air Lines Ltd (‘Swiss’), based at Zurich airport (Swiss), Air Dolomiti, Eurowings and Eurowings’ low-cost subsidiary, Germanwings. In addition, it has acquired British Midlands (‘BMI’) and Brussels Airlines (‘SN Brussels’). Lufthansa also holds 19% of the shares of Jet Blue, a low-cost airline operating in the United States. Lufthansa and Swiss are members of Star Alliance.

2 Austrian Airlines (‘Austrian’) is Austria’s largest airline, having its main hub at the international airport at Vienna (Austria). It provides scheduled passenger and cargo transport and related services. It serves 121 destinations in 63 countries, including through code-sharing agreements with other airlines. Its subsidiaries include Lauda Air and Tyrolean Airways. It also holds 22.5% of the shares in Ukraine International Airlines. Austrian is a member of Star Alliance.

3 Niki Luftfahrt GmbH is a company governed by Austrian law; it is established in Vienna and operates an airline under the name ‘FlyNiki’ or ‘Niki’. It operates out of Vienna, Linz (Austria), Salzburg (Austria), Graz (Austria) and Innsbruck (Austria), providing, in particular, flights to destinations throughout Europe and North Africa. At the time of bringing the action the applicant was owned as to 76% by Privatstiftung Lauda (Lauda private foundation) and as to 24% by the second largest German airline, Air Berlin.

2. Administrative procedure

4 In 2008, Austrian reported losses of EUR 430 000 000 and in mid-2009 the net result for the period January to June 2009 corresponded to a loss of EUR 166 600 000. In July 2008, Austrian’s supervisory board concluded that it would be difficult to continue to operate Austrian as a stand-alone company. Consequently, Austrian’s supervisory board asked the Republic of Austria, Austrian’s main shareholder, to privatise the company. As a consequence, the Austrian Government issued a privatisation mandate pursuant to which the public holding Österreichische Industrieholding Aktiengesellschaft (‘ÖIAG’) was authorised to dispose of its entire shareholding in Austrian.

5 On 5 December 2008, in the context of the procedure in the privatisation of Austrian, Lufthansa agree to acquire a 41.56% share in Austrian indirectly from ÖIAG.

6 In addition, on 27 February 2009, Lufthansa launched a public offer for all the remaining free-floating shares in Austrian, for which it received more than the required quantity of declarations of acceptance. Together with the shares acquired from ÖIAG, Lufthansa was thus able to acquire 85% of the shares in Austrian.

7 The concentration resulting from Lufthansa’s participation in Austrian was notified to the Commission of the European Communities on 8 May 2009.

8 In addition to assessing the compatibility of the concentration in question with the common market, the Commission at the same time assessed the terms of the proposal for the acquisition by Lufthansa of the Republic of Austria’s shares in Austrian, including the payment of EUR 500 000 000 by the Republic of Austria in order to increase Austrian’s capital, in the light of Articles 87 EC and 88 EC.

9 By decision of 1 July 2009, the Commission found that the concentration raised serious doubts as to its compatibility with the common market. The Commission therefore decided to initiate the in-depth examination procedure, in accordance with Article 6(1)(c) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1; ‘the Merger Regulation’).

10 On 10 July 2009, Lufthansa submitted a number of proposed commitments, in accordance with Article 8(2) of the Merger Regulation. On 17 and 27 July 2009, Lufthansa submitted revised versions of those commitments. After receiving the revised version of those commitments, the Commission launched a market investigation in order to obtain the viewpoints of competitors, customers and other market players on those commitments. The results of that market investigation were communicated to Lufthansa, which then submitted a final version of its commitments on 31 July 2009 (‘the commitments’).

11 As the Commission considered that the commitments submitted by Lufthansa were sufficient to remove the serious doubts as to the compatibility of the concentration with the common market, it did not send Lufthansa a statement of objections and adopted Decision C(2009) 6690 final of 28 August 2009 (Case No COMP/M.5440 — Lufthansa/Austrian Airlines) (‘the contested decision’). By that decision, a summary of which was published in the Official Journal of the European Union (OJ 2010 C 16, p. 11), the Commission declared that the concentration whereby Lufthansa acquired control of Austrian within the meaning of Article 3(1)(b) of the Merger Regulation was compatible with the common market and the EEA Agreement.

12 At the same time as the merger control procedure, the Commission adopted two decisions on State aid. In the first place, by the Decision of 19 January 2009 on State aid NN 72/08, Austrian Airlines — Rescue aid, the Commission approved rescue aid in the form of a 100% guarantee provided by the Republic of Austria on a loan of EUR 200 000 000 to Austrian to be used in priority to repay the latter’s debts. In the second place, on 28 August 2009 the Commission adopted Decision 2010/137/EC (ex NN 663/08) — Austria Austrian Airlines — Restructuring Plan (OJ 2010 L 59, p. 1) (‘the Restructuring Plan decision’), declaring that, subject to certain conductions, the restructuring aid granted by the Republic of Austria in favour of Austrian in the context of the purchase of Austrian by the Lufthansa group was compatible with the common market. The latter decision forms the subject-matter of an action for annulment registered on the list of cases before the Court as Case T‑511/09.

3. Content of the contested decision

Relevant markets

13 As regards the definition of the relevant markets, the Commission identified a number of services provided by Lufthansa and by Austrian, namely passenger air transport services, air cargo transport services, the sale of airline seats to tour operators, maintenance, repair and overhaul services, in-flight catering and ground handling services. However, in the context of the present dispute, only the passenger air transport service and the sale of airline seats to tour operators are relevant.

14 As regards, in the first place, the passenger air transport service, the Commission, in accordance with its practice, essentially examined the question of supply-side substitutability. It defined the relevant markets by reference of the ‘point of origin — point of destination’ approach (‘the O&D approach’), where each route between a point of origin and a point of destination is regarded as a separate market. In order to determine whether a given route between a point of origin and a point of destination was a market to be taken into consideration, the Commission examined the various possibilities available to consumers to travel between those two points.

15 With more particular regard to network carriers, however, the Commission took into consideration certain supply-side elements, such as competition between airlines based on the ‘hub and spoke’ network structure of traditional carriers. It thus stated that although from a supply-side perspective a network carrier could in theory fly from any point of origin to any point of destination, in practice network carriers built their network and decided to fly almost exclusively on routes connecting to their hubs. According to the Commission, similar considerations applied to airlines that focus on point-to-point services. It also observed that, from a demand-side perspective, it had previously considered that while networks had some importance for corporate customers whose demand was driven both by network effects and by O&D considerations, individual customers essentially sought the cheapest and most convenient connection between two cities.

16 In the contested decision, the Commission stated that the market investigation had generally confirmed the O&D approach. However, some responses, particularly those of the traditional network carriers, had indicated that the O&D approach failed to take into account the hub and spoke function of major airports and the ensuing network effects. Thus, several carriers had pointed out that both the point of origin and the point of destination should include all airports that were substitutable from the perspective of passengers.

17 In that context, the Commission examined flight substitutability from the perspective of passengers according to the following factors: the existence of at least two airports at the point of origin or of destination; passenger time-sensitivity; and the direct or indirect nature of flights. First of all, as regards the existence of at least two airports at the point of origin or of destination, the Commission considered that the criterion according to which airports would be considered to be substitutable where they were in the same catchment area corresponding to a distance of 100 km or one hour of travel time between the city centre and the airports, as used in Decision C(2007) 3104 of 27 June 2007 Ryanair/Aer Lingus (Case COMP/M.4439 — Ryanair/Aer Lingus) (OJ 2008 C 47, p. 9), was only a first ‘proxy’ that was not necessarily valid for other cases, such as routes served by two network carriers. Consequently, the Commission stated that the characteristics of the particular case should be taken into account in order to correctly capture the competitive constraints that flights from/to two different airports exerted on each other. The Commission thus examined the substitutability of flights from different airports, in particular in relation to the following pairs of airports: Bratislava Airport (Slovakia) and Vienna International Airport Schwechat; Frankfurt-Hahn Airport and Frankfurt International Airport; Cologne-Bonn Airport and Düsseldorf International Airport; Brussels South Charleroi Airport and Brussels National Airport Zaventem.

18 Next, as regards the substitutability of flights by reference to the time sensitivity of passengers, the Commission observed that in previous decisions it had had considered that unrestricted tickets primarily purchased by time-sensitive passengers might constitute a different market from the market for restricted tickets primarily purchased by non-time-sensitive passengers. On the one hand, time-sensitive passengers tend to travel for business purposes, to buy their tickets close to departure, to require significant flexibility for their tickets, such as cost-free cancellation and change of departure time, to pay higher prices for that flexibility and to require a higher number of frequencies on a given O&D pair. On the other hand, non-time-sensitive passengers essentially travel for leisure purposes or to visit friends and family, book well in advance and do not require flexibility with their bookings. Time-sensitive passengers therefore have different preferences from non-time-sensitive passengers, which is reflected in the different types of tickets with which the airlines target those two different groups of passengers.

19 According to the Commission, the analysis of this case confirmed that there were essentially two categories of passengers with different needs and different price sensitivities, although some participants in the market investigation indicated that that distinction between time sensitive and non-time-sensitive passenger was becoming less evident, as even time-sensitive passengers were becoming increasingly price-focused and tended to prefer a restricted ticket to an unrestricted ticket if it was less expensive. In the light of that preference for restricted tickets, most carriers, including the low-cost carriers, offered rebooking services (modifying either the date or the passenger’s name) for a fee. However, the distinction between time-sensitive passengers and non-time-sensitive passengers, and hence between unrestricted and restricted tickets, remained important. Time-sensitive passengers continue to require a higher number of frequencies and specific departure and arrival times at the point of origin and destination. Last, given the need for flexibility and the shortest possible travel time, time-sensitive passengers seem to be less inclined to use secondary airports than non-time-sensitive passengers.

20 In particular, most participants in the market investigation consider that time-sensitive passengers need to maximise their time at their destination and minimise their travel time. Consequently, for most of the participants in the market investigation, that segment of passengers requires early morning and late afternoon flights (with an ideal morning departure time at around 7 a.m., with a maximum time window between 6.30 and 8.30 a.m., and an afternoon departure time at around 6 or 7 p.m., with a maximum time window between 5 and 8 p.m.). Time-sensitive passengers also require a sufficient number of daily flight frequencies. A minimum of two flights per day are required to allow for a same-day return, although a majority of participants in the market investigation indicated that time-sensitive passengers required more than two flights per day, depending on the destination. The type of carrier preferred by time-sensitive passengers is also relevant: most participants in the market investigation consider that time-sensitive passengers prefer full service network carriers to low-cost carriers. Those views are shared by all groups of participants in the market investigation, namely corporate customers, travel agents and competing airlines.

21 In addition, the Commission observes that the possibility of making same-day return trips to short-haul destinations was considered important by all of the responding corporate customers, mainly because of the time and money saved, and the majority are even prepared to pay a slight premium in order to benefit from same-day return trips. That is also confirmed by the replies of travel agents.

22 As regards airport location, most responding travel agents and competitors indicated that primary airports located close to business centres and short distances were more important to time-sensitive passengers than for non-time-sensitive passengers. Corporate customers stated that they have a clear preference for minimising travel time (and costs for business trips) of their employees, regardless of whether they regard their employees as time sensitive or non-time sensitive.

23 Last, as regards the level of substitutability of indirect flights and direct flights, the Commission considered that it depended on the duration of the flight. As a general rule, the longer the flight, the higher the likelihood that indirect flights will exert a competitive constraint on direct flights. With respect to short-haul routes, the Commission observes that it considered in previous decisions that indirect flights did not exert competitive pressure on direct flights, save in exceptional circumstances, for example where the direct flight does not allow a one-day return trip, which is of particular importance for business travellers. The market investigation largely confirmed that, for short-haul flights, indirect flights did not generally constitute a competitive alternative to direct flights, since customers actually prefer direct flights. The Commission emphasises that in previous decisions it analysed mid-haul flights, that is to say, flights of more than three hours where direct flights do not normally allow a one-day return trip, so that indirect flights are able to compete with direct flights (Commission Decision of 4 July 2005 in Case No COMP/M.3770 — Lufthansa/Swiss (OJ 2005 C 204, p. 3), paragraph 17, and Commission Decision in Case COMP/M.4439 — Ryanair/Aer Lingus, paragraph 288 et seq.).

24 Owing to the longer flight duration of those mid-haul routes, indirect flights seem to be more credible alternatives and some participants in the market investigation indicated that indirect flights, in certain circumstances, constituted a competitive alternative. That analysis was in line with the Commission’s previous practice (see Commission Decision of 22 June 2009 in Case No COMP/M.5335 — Lufthansa/SN Airholding (OJ 2009 C 295, p. 11), paragraph 45).

25 As regards long-haul flights (flights over six hours covering a distance of over 5000 km), the Commission observes that it considered in previous decisions that indirect flights constituted a competitive alternative to non-stop services on certain conditions, in particular where (a) they are marketed as connecting flights on the O&D pair in the computer reservations, (b) they operate on a daily basis and (c) they result in only a limited increase in travelling time (a maximum of 150 minutes) (see, for example, Commission Decision of 12 January 2001 in Case No COMP/M.2041 — United/US Airways and Commission Decision of 5 March 2002 in Case No COMP/M.2672 — SAS/Spanair (OJ 2002 C 93, p. 7)). The market investigation largely confirmed that indirect flights constitute a competitive alternative in the case of flights lasting more than six hours, and a number of participants in the market investigation regarded them as substitutable.

26 As regards, in the second place, the wholesale supply of airline seats to tour operators, the Commission considered that the market investigation did not contradict its findings in previous decisions that there was such a market, separate from the passenger air transport service market (see, for example, Commission Decision 17 December 2008 in Case No COMP/M.5141 — KLM/Martinair (OJ 2009 C 51, p. 4), paragraph 121, or Commission Decision in Case No COMP/M.4439 — RyanAir/AerLingus, paragraph 299). The Commission considered, however, that it was not fully clear from the market investigation whether that market was national in scope or whether it comprised Germany and Austria.

Assessment of the effects of the transaction on competition

Conceptual framework for the assessment of the concentration

27 As a preliminary point, the Commission emphasised in the contested decision that before being notified of the proposed transaction it had received notification of a transaction on 26 November 2008 according to which Lufthansa intended to acquire sole control of SN Airholding SA/NV, the holding company of SN Brussels. The Commission authorised the acquisition of SN Brussels by Lufthansa subject to certain conditions on 22 June 2009 (Case No COMP/M.5335 — Lufthansa/SN Airholding). Furthermore, on 3 April 2009 the Commission also received notification of a transaction whereby Lufthansa intended to acquire sole control of BMI. The Commission approved that transaction without conditions, by decision of 14 May 2009 (Case No COMP/M.5403 — Lufthansa/BMI (OJ 2009 C 158, p. 1)) (‘the Lufthansa/BMI Decision’). Lufthansa’s transactions with SN Brussels and BMI were concluded on 24 June 2009 and 1 July 2009 respectively and were subsequently implemented. When analysing the concentration between Lufthansa and Austrian, the Commission therefore treated SN Brussels and BMI as subsidiaries of Lufthansa.

28 The Commission then stated that the transaction raised two conceptual issues, the first concerning the treatment of Lufthansa’s and Austrian’s partners within Star Alliance for the purpose of market definition and the competitive analysis of the transaction and the second relating to the relevant counterfactual for the assessment of the effects of the transaction with respect to the routes on which Lufthansa (including Swiss, Germanwings, SN Brussels and BMI) and Austrian cooperate with each other.

29 In the first place, the Commission considered, in that regard, that the partners of Lufthansa and Austrian within Star Alliance should not be taken into consideration in the definition of the affected markets, since the transaction would not have the effect of automatically extending the cooperation agreements between Lufthansa and its Star Alliance partners to Austrian or have the effect of extending the cooperation agreements between Austrian and its Star Alliance partners to Lufthansa. As regards the competitive analysis of affected markets, the Commission considered that the relationship between the airlines and the subsequent impact of the transaction on their incentive to compete after the merger ought to be evaluated on a route-by-route basis. Thus, according to the Commission, if it is found that a party to the concentration and a third party have less incentive to compete on account of the transaction, that factor must be taken into account for the purposes of the assessment.

30 In the second place, the Commission determined the relevant counterfactuals in order to evaluate the effects of the transaction on routes on which Lufthansa and Austrian cooperate. The Commission recalled the terms of paragraph 9 of 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 2004 Guidelines’): ‘In assessing the competitive effects of a merger, the Commission compares the competitive conditions that would result from the notified merger with the conditions that would have prevailed without the merger. In most cases the competitive conditions existing at the time of the merger constitute the relevant comparison for evaluating the effects of a merger. However, in some circumstances the Commission may take into account future changes to the market that can reasonably be predicted. …’

31 In that context, the Commission considered that the relevant counterfactual scenarios for the assessment of the effects of the concentration on competition were (i) the pre-merger state of cooperation between the parties; and (ii) the most likely foreseeable future development if the acquisition of Austrian by Lufthansa did not take place.

32 As regards the pre-merger cooperation between Lufthansa and Austrian, the Commission stated that it existed in a number of forms, namely (i) a cost and revenue sharing joint venture on all routes between Austria and Germany; (ii) a worldwide bilateral cooperation agreement; (iii) a code-share agreement on routes between Austria and Switzerland; and (iv) a code-share between British Midlands, a Lufthansa subsidiary, and Austrian.

33 As regards the most likely development if the acquisition of Austrian by Lufthansa did not take place, the Commission took, in the light of the Austrian Government’s decision to find a private investor for Austrian, the scenario of an acquisition by another airline, more specifically by Air France-KLM. In that scenario, Austrian would terminate its cooperation with Lufthansa and leave Star Alliance to join Sky Team, to which Air France-KLM belongs.

Analysis of competition

34 In the first place, as regards the scheduled passenger air transport service, the Commission considered that the concentration gave rise to a number of horizontal overlaps that could be grouped in the following categories: — 23 short-haul routes between Austria and Germany, which are serviced under the cost and profit-sharing joint venture; — three short-haul routes between Austria and Switzerland; — one short-haul route between Austria and Belgium; — on short-haul route between Austria and the United Kingdom; — ‘direct-indirect overlaps’, that is to say, routes where one party offers a direct connection, while the other offers an indirect connection; and — ‘indirect-indirect overlaps’, that is to say, routes where both parties offer only indirect services.

35 Following its analysis of competition on the different horizontal overlaps, the Commission concluded that the transaction raised serious doubts as to its compatibility with the common market on the following routes: Vienna-Stuttgart (Germany), Vienna-Cologne-Bonn (Germany), Vienna-Munich, Vienna-Frankfurt am Main and Vienna-Brussels (‘the identified city pairs’).

36 In the second place, as regards the sale of airline seats to tour operators, the Commission considered that, owing to Lufthansa’s and Austrian’s combined market shares on the German market, the Austrian market and the combined Austria-Germany market for long-haul flights which are, in all three cases, between 5% and 10%, and also the strong presence of FlyNIki on the Austrian market (between 40% and 50% of market shares for short-haul and mid-haul flights), the transaction would not significantly impede effective competition on the market for the sale of airline seats to tour operators.

37 Furthermore, the Commission considered it appropriate also to assess the impact of the rescue aid and restructuring aid granted to Austrian on the markets, in particular, of passenger air transport and the sale of airline seats to tour operators, on the ground that those funds could reinforce Austrian’s commercial position.

38 In that regard, the Commission observed, however, that Austrian was in financial difficulties. The Commission thus stated that on 19 December 2008 Austria had notified the Commission of its decision to grant rescue aid to the Austrian group and that on 22 December 2008 it had learnt that a first tranche of EUR 67 000 000 of that rescue aid had been granted to Austria to allow it to continue operations, before the Commission had been able to take a position on its compatibility with the common market.

39 The Commission observed that Austrian’s perilous financial situation was further illustrated by the fact that any stand-alone Austrian operation would require additional funding going significantly beyond the amount of the rescue aid and the restructuring aid. In addition, the Commission stated that the rescue aid of EUR 200 000 000 had to a very large extent already been used by Austrian to repay aircraft financing and that the extent of its financial needs was in line with the findings in Decision 2010/137 that the cost of restructuring was significantly in excess of EUR 500 000 000.

40 The Commission concluded that it was unlikely that Austrian had used or would use the rescue aid and the restructuring aid in a way that would call into question its analysis of the effects of the concentration of the affected markets and, in particular, to prevent the expansion of its competitors. The Commission observed that both the rescue aid and the restructuring aid were aimed at making the acquisition of Austrian by Lufthansa economically sustainable and, in particular, at ensuring the liquidity of Austrian, reducing its liabilities and restoring its profitability in the long term. The Commission also stated that it would monitor the use of funds by Austrian in the future.

41 The Commission indicated that that conclusion was also confirmed by the strong financial position of Lufthansa, which had achieved operating results of above EUR 1 000 000 000 in 2007 and 2008 and had a total liquidity of EUR 5 200 000 000, including a strategic minimum liquidity of EUR 2 000 000 000 on 31 March 2009. In fact, according to the Commission, the impact of the rescue aid and the restructuring aid would be limited by comparison with the financial strength of the merged entity.

42 Furthermore, as regards the direct-direct routes which are served by only one of the parties, the Commission stated that the market investigation had not revealed that the grant of additional funds to Austria would change the findings in relation to those routes in particular, that is to say that the transaction would lead to the elimination of potential competition. On the contrary, the main reasons why no competition concerns arose in relation to those routes, namely low demand on most of those routes, entry strategies of Lufthansa and Austrian as evidenced by internal documents, the absence of parallel operations pre-cooperation on most of those routes, applied independently of the State aid in question. In addition, with more particular regard to Austrian’s entry strategy, the market investigation did not reveal any indications that Austrian would change its entry strategy in view of the additional funds at issue, which was also illustrated by the fact that Austrian had already exhausted almost all the rescue aid without changing its entry strategy. It was therefore unlikely that Austrian would use those additional funds to begin to operate on those routes.

Commitments

43 In order to remove the serious doubts raised by the concentration as regards its compatibility with the common market, Lufthansa and Austrian proposed commitments in order to resolve the competition concerns in relation to the identified city pairs. The commitments, which are aimed at reducing the barriers to entry and at facilitating the entry of one or more new entrants or the expansion of competitors already present on those routes, are summarised below.

Commitments concerning slots

– Slot release on city pairs raising competition concerns

44 In the context of the commitments, the parties undertook to make slots available, according to a specific procedure, at the airports of Vienna, Stuttgart, Cologne/Bonn, Munich, Frankfurt-am-Main and Brussels on the five routes in respect of which the Commission identified competition concerns.

45 The slots made available would enable a new entrant to operate the following numbers of frequencies on the identified city pairs: — Vienna-Stuttgart: up to three frequencies per day; — Vienna-Cologne/Bonn: up to three frequencies per day, but not more than 18 frequencies per week; — Vienna-Frankfurt-am-Main, up to five frequencies per day; — Vienna-Munich: up to four frequencies per day; — Vienna-Brussels: up to four frequencies per day, but not more than 24 frequencies per week.

46 The number of slots referred to above would be reduced by those already transferred to a new entrant under the commitments, unless those slots should cease to be used by the new entrant and therefore revert to the parties.

47 As regards all the identified city pairs, with the exception of Vienna-Frankfurt-am-Main and Vienna-Munich, to which special provisions applied, frequencies already used by an airline independent of or unconnected to the parties on an identified city pair were to be deducted from the number of slots which the parties were to make available to that airline under the commitments.

48 As regards the Vienna-Frankfurt-am-Main route, the two daily frequencies operated by the applicant (three frequencies, to the extent that the applicant would obtain a third slot from Lufthansa as from the International Air Transport Association (IATA) winter season 2009/2010) would be deducted from the number of slots to be made available under the commitments. If the applicant were to cease to operate one or more of those frequencies before acquiring grandfathering rights, those frequencies would be made available to new entrants under the commitments.

49 The applicant would be entitled to exchange the slots it received from Lufthansa at Frankfurt-am-Main airport in accordance with the existing slot lease agreement between Lufthansa and the applicant against slots which Lufthansa would make available under the commitments. However, in order to take Lufthansa’s wave structure at Frankfurt-am-Main airport into account, Lufthansa would not be required to transfer to the applicant more than one slot at Frankfurt-am-Main airport during each of the following periods:

Arrival: Departure 5 h 35 — 8 h 00 6 h 30 — 8 h 15 8 h 05 — 10 h 20 8 h 20 — 11 h 35 10 h 25 — 14 h 00 11 h 40 — 15 h 05 14 h 05 — 15 h 30 15 h 10 — 16 h 15 15 h 35 — 17 h 50 16 h 20 — 19 h 45 17 h 55 — 21 h 50 19 h 50 — 22 h 25

50 Furthermore, and independently of whether or not the applicant should choose to obtain new slots from the parties to the concentration in exchange for its current slots at Frankfurt-am-Main airport, Lufthansa undertook to amend its existing slot lease agreement with the applicant to reflect the provisions of the commitments, in particular as regards the possibility for the applicant to acquire grandfathering rights in respect of those slots.

51 Furthermore, if no operator other than a Star Alliance operator should request a remedy slot for the IATA summer season 2010 (or the first season for which the procedures for implementation of the commitments would be in place, whichever would be the later), one of the three frequencies operated by Adria Airways on the Vienna-Frankfurt-am-Main route would be deducted from the number of slots to be made available under the commitments. That deduction would initially apply for a period of four consecutive IATA seasons and for every subsequent period of two years until a non-Star Alliance operator should request a remedy slot.

52 In addition, Lufthansa undertook to amend its existing agreements with Adria Airways with respect to one slot, to reflect the provisions of the commitments, provided however that Adria Airways would not obtain grandfathering rights.

53 As regards the Vienna-Munich route, where the applicant operates three daily frequencies for which it had received slots via the normal slot allocation procedure, the commitments provide that Niki would be entitled to exchange its current slots on that route against slots which Lufthansa would make available under the commitments. Regardless of whether or not Niki decided to exchange its present slots under the commitments, its frequencies would be deducted from the total number of slots to be made available by the parties on that route. If Niki should cease to operate one or more of its frequencies, they would be made available to new entrants under the commitments.

54 As regards the Vienna-Stuttgart and Vienna-Cologne/Bonn routes, Lufthansa was already required to make slots available to new entrants on the basis of a previous merger decision, namely Commission Decision C2006/018/07 of 22 December 2005 in Case No COMP/M.3940 — Lufthansa/Eurowings (OJ 2006 C 18, p. 22). To the extent that the parties had already made slots available to a new entrant pursuant to the commitments in that case, those slots would be counted against the number of slots to be made available pursuant to the commitments in the present case. New entrants would be able to choose slots for those two routes pursuant to the commitments which they wished to be applied, namely those given in the previous case or those given in this case.

– Conditions pertaining to the slot transfer

55 The slot transfer procedure envisaged by the commitments would run in parallel with the normal slot allocation procedure. An airline wishing to obtain slots on one of the identified city pairs would request slots through the normal slot allocation procedure and apply for a slot transfer under the commitments at the same time. If the airline’s slot request to the slot coordinator was not met as a result of the IATA scheduling conference, the commitments provided that the parties must offer to transfer the requested slots to the requesting airline within one week following the latter’s commitment to operate them. Slots would have to be released free of charge and be within 20 minutes of the time requested by the requesting airline if either of the parties to the concentration had slots available in that timeframe. Otherwise, the parties would have to offer the slots closest in time to the requesting airline’s request.

56 The slot lease agreement between the parties to the concentration and the requesting airline would have to be signed and the transfer effected within three weeks after the slot handback deadline, which is 15 January for the IATA summer season and 15 August for the IATA winter season. The slot lease agreement will have a duration equal to the utilisation period of the relevant identified city pair, but the new entrant will have the right to terminate the agreement at the end of each IATA season without penalty. Finally, the commitments provide that a new entrant who decides to operate the greatest number of routes will be favoured.

– Grandfathering rights

57 The commitments also made provision for the new entrants to acquire grandfathering rights in relation to slots obtained from the parties to the concentration. The new entrant would obtain grandfathering rights over those slots, that is to say, it would be entitled to use the slots transferred from the parties at both ends of any identified city pair for a different intra-European city pair from the identified city pairs, once it had served the relevant identified city pair during two full consecutive IATA seasons for all identified city pairs except for the Vienna-Frankfurt-am-Main route and during eight consecutive IATA seasons for the Vienna-Frankfurt-am-Main route. By contrast, if the new entrant should cease to operate the slots transferred in the relevant identified city pair before the end of the two IATA seasons referred to above, those slots would be handed back to Lufthansa and would be made available under the commitments for another new entrant.

– Star Alliance members as new entrants

58 The above commitments were to be fully applicable only to new entrants which were not members of Star Alliance. In principle, Star Alliance members could also obtain slots in the framework of the commitments, but airlines not members of Star Alliance would be given priority if several potential entrants were to apply for slots on the same route under the commitments. Priority would always be given to a non-Star-Alliance airline, that is to say, even if a Star Alliance member were to apply for a larger number of routes than an airline which was not a member of Star Alliance.

59 Furthermore, a new entrant which was a member of Star Alliance would not be able to obtain grandfathering rights in relation to slots obtained from the parties. A new entrant which is a Star Alliance member will not be able to enter into a code-share agreement or a revenue-sharing/profit-sharing joint venture with the parties to the concentration or with other Star Alliance partners on the identified city pairs. When a Star Alliance members ceases to use one of the slots released pursuant to the commitments, the parties to the concentration must offer those slots to new entrants again.

60 If a Star Alliance member obtained slots pursuant to the commitments, the Commission might impose specific conditions, notably to guarantee the independence of Star Alliance airline from the parties to the concentration.

Other commitments and provisions

– Special prorate and code-share agreements

61 The commitments offered a new entrant the possibility to enter into a special prorate and code-share agreement allowing it to place its codes on flights with a true origin and destination in either Austria, Germany or Belgium, provided that part of the journey involves an identified city pair. The conditions of that special prorate agreement would have to be such that the new entrant would receive the same treatment as the Lufthansa partners which were Star Alliance members for the same identified city pair.

– Other provisions

62 The slot release commitments are supplemented by other commitments such as the possibility for a new entrant to conclude interlining and frequent flyer programme access agreements with the parties, and also intermodal agreements with a railway or other surface transport company.

63 The commitments envisaged the appointment of a monitoring trustee who would be responsible for monitoring the parties’ compliance with the commitments and for assisting the Commission during the slot transfer procedure provided for in the commitments.

64 The commitments also contained provisions on fast-track dispute resolution according to which the new entrant could decide to settle any dispute with the parties in relation to the commitments through arbitration. The arbitration decision would be binding on both the new entrant and the parties. The burden of proof in any dispute required the new entrant to provide prima facie evidence of its case and the parties to provide evidence to the contrary.

65 The commitments, in particular the obligation to transfer slots, were for an indefinite period but contained a review clause.

Analysis of the commitments

66 In the context of the evaluation of the commitments proposed by Lufthansa and Austrian, the Commission states that it took account of the interest expressed by competitors in entering the identified city pairs or expanding their activities on them and that it considered that the package of remedies as a whole was attractive in the light of the current economic context of the air transport industry. The Commission states that it concluded that the commitments proposed were likely to entail the entry of one or more airlines on the identified city pairs in a timely manner and that that entry would suffice to remove the serious doubts identified on those markets.

Conclusion

67 The Commission therefore considered that the concentration should be declared compatible with the common market pursuant to Article 8(2) of the Merger Regulation and with the EEA Agreement pursuant to Article 57 of that agreement, subject to compliance with the commitments set out in the annex, which is an integral part of the contested decision.

68 The Commission stated that that conclusion held true irrespective of the rescue aid and the restructuring aid, owing to the fact that those funds primarily served the purpose of ensuring the survival of Austrian and to their low amount by comparison with the overall financial needs of Austrian and the overall financial strength of Lufthansa.

Procedure

69 By application lodged at the Court Registry on 13 April 2010, Niki Luftfahrt, the applicant, brought an action for annulment of the contested decision.

70 By documents lodged at the Court Registry on 9 July 2010 and 20 July 2010 respectively, Lufthansa and ÖIAG applied for leave to intervene in the present case in support of the form of order sought by the Commission. By order of 5 October 2010, the President of the Seventh Chamber of the General Court granted Lufthansa and ÖIAG leave to intervene.

71 By document lodged at the Court Registry on 2 August 2010, the Republic of Austria applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 5 October 2010, the President of the Seventh Chamber of the General Court granted the Republic of Austria leave to intervene.

72 By documents lodged at the Court Registry on 20 August 2010 and 1 September 2010 respectively, the Commission requested confidential treatment of certain data which in its view constituted business secrets vis-à-vis the interveners.

73 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the present case was accordingly assigned on 27 September 2010.

74 As the interveners raised no objections to the request for confidential treatment, a non-confidential version of the pleadings was sent to them, as originally provided for in the orders of 5 October 2010 referred to above.

75 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the First Chamber, to which the present case was therefore assigned on 24 May 2012.

76 On 18 February 2013, by way of a measure of organisation of procedure on the basis of Article 64(3)(b) and (c) of its Rules of Procedure, the Court asked the Commission to inform it what method it had used in order to ensure that the responses provided by competitors, corporate customers and travel agencies in the context of the market investigation carried out during Phase I of the examination of the concentration were representative.

77 On the same date, by means of a measure of organisation of procedure, on the basis of Article 64(3)(d) of the Rules of Procedure, the Court asked the Commission to produce the commitments by the parties to the concentration on 10 July 2009, the questionnaire sent to the market players on 27 July 2009 and the replies to that questionnaire which the Commission had received before the meeting of 31 July 2009, if necessary anonymising the names of the participants in the market investigation, and also the replies to question 28 in the questionnaire sent to the competitors of the parties to the concentration on 12 May 2009 during phase I of the investigation.

78 On 22 March 2013, the Commission replied to the question put by the Court and complied in part with its request for the production of documents.

79 On 17 July 2013, the Court, by a new measure of organisation of procedure, adopted on the basis of Article 64(3)(d) of the Rules of Procedure, asked the Commission to produce the commitments proposed by the parties to the concentration on 10 July 2009 and all the replies to the questionnaire sent to the market players on 27 July 2009 which it had not yet produced, if necessary anonymising the names of the authors of the replies. The Commission complied with that request on 19 August 2013.

80 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was therefore assigned.

Forms of order sought

81 The applicant claims that the Court should: — annul the contested decision; — order the Commission to pay the costs.

82 The Commission, supported by the Republic of Austria, Lufthansa and ÖIAG, contends that the Court should: — dismiss the action; — order the applicant to pay the costs.

Law

83 In support of the action, the applicant puts forward three pleas in law. The first plea alleges infringement of Article 81(1) and (3) EC and of Article 8 of the Merger Regulation and breach of the 2004 Guidelines. The second plea alleges breach of essential procedural requirements. The third plea alleges misuse of powers.

84 As a preliminary point, it should be borne in mind that, according to Article 2(3) of the Merger Regulation, a concentration which would significantly impede effective competition in the common market or in a substantial part of it, in particular as a result of the creation of a dominant position, is to be declared incompatible with the common market. Conversely, pursuant to Article 2(2) of the Merger Regulation, the Commission is required to declare any concentration falling within the scope of that regulation compatible with the common market provided that the condition laid down in Article 2(3) of that regulation is not satisfied.

85 According to settled case-law, the basic provisions of the Merger Regulation, in particular Article 2 thereof, confer on the Commission a certain discretion, especially with respect to assessments of an economic nature, and that, consequently, review by the Courts of the European Union 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 (see judgment of 6 July 2010 in Ryanair v Commission, T‑342/07, ECR, EU:T:2010:280, paragraph 29 and the case-law cited).

86 Whilst the Courts of the European Union recognise that the Commission has a margin of discretion with regard to economic matters, that does not mean that they must refrain from reviewing the Commission’s interpretation of information of an economic nature. They must establish, in particular, not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the 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 (judgment in Ryanair v Commission, paragraph 85 above, EU:T:2010:280, paragraph 30).

87 In addition, according to settled case-law, where the institutions 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 Commission to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his view known and also his right to have an adequately reasoned decision (judgment in Ryanair v Commission, point 85 above, EU:T:2010:280, point 31).

88 It is in the light of those principles that the applicant’s pleas and arguments must be examined.

89 The Court considers it appropriate to begin by examining the second plea, alleging breach of essential procedural requirements.

1. Second plea, alleging breach of essential procedural requirements

90 The second plea consists of two parts, alleging, first, failure to state reasons concerning the competitive situation as regards air routes from Central Europe to Eastern Europe outside the EU and, second, failure by the Commission to establish the facts to a sufficient standard in the context of the market investigation.

First part of the second plea, alleging breach of the obligation to state reasons

91 The applicant maintains, in essence, that the contested decision fails to state reasons as regards the competitive situation on the air routes between Central Europe and Eastern Europe.

92 In that regard, the applicant’s argument that in the contested decision the Commission merely referred to the market investigation so far as the analysis of the effects of the concentration on routes between Central Europe and Eastern Europe is concerned must be rejected. It is apparent from the contested decision that the Commission stated in recitals 267 and 268 that ‘[t]he proposed transaction gives rise to a large number of affected routes concerning direct-indirect overlaps between [Lufthansa] and [Austrian] both within Europe and from European airports to extra-European destinations’ which were analysed ‘with respect to the market position of the parties and the market share increment brought about by the transaction’. The Commission also stated that ‘the presence and position of competitors and the number of passengers on each route were assessed’ and that, ‘[w]here necessary, the number and duration of frequencies offered by competitors and their suitability for time-sensitive passengers, in particular, were assessed’. The Commission then stated that ‘[o]n the basis of these criteria, no competition concerns were identified’, then that, ‘[i]n addition, the market investigation did not reveal any competition concerns with respect to the identified direct/indirect and indirect/indirect overlaps with the exception of [Lufthansa]’s and [Austrian]’s market position in Central and Eastern Europe’.

93 It should also be noted that the Commission stated in recital 269 to the contested decision that ‘[s]ome [participants in] the market investigation in phase I voiced concerns with respect to the strong market position of [Lufthansa] and [Austrian] in [Central and Eastern Europe], concerning mainly the post-transactional control by [Lufthansa] of a very substantial part of a so-called Central European market, particularly as a result of their control of the most important hubs catering [for Central and Eastern Europe] and their well-developed networks concerning this area’. The Commission further observed that ‘[t]he results of the more refined phase II market investigation showed, however, that the vast majority of corporate customers in particular [did] not see any negative impact in relation to a potentially strengthened position of the merged entity for flights serving [Central and Eastern Europe] and indicated existing alternative competitors’.

94 Consequently, it is apparent from the contested decision that the Commission stated that it had initially analysed the effects of the concentration on routes from Europe to extra-European destinations, therefore including Eastern Europe, on which Lufthansa’s and Austrian’s services presented direct-indirect and indirect/indirect overlaps, following which no competitive concerns had been identified on the routes in question, and then dispelled the competition concerns raised by certain participants in the market investigation during phase I of that investigation in the light of the responses of participants in the market investigation in the more refined phase II of that investigation.

95 The applicant’s assertion that the Commission merely referred to the results of the market investigation in order to explain the lack of competition concerns on routes between Central Europe and Eastern Europe is therefore unfounded.

96 The applicant’s argument that the Commission did not state, in the context of the analysis of the competitive situation on routes between Central Europe and Eastern Europe, on which of those routes the air carriers Air France-KLM, British Airways, CSA and Malev would have constituted credible alternatives to Lufthansa and Austrian must also be rejected.

97 It should be observed that recitals 270 and 271 to the contested decision, where the Commission mentions the carriers referred to above, do not relate to the analysis which led the Commission to find, in recital 268 to the contested decision, that there were no competition concerns about routes between Central Europe and Eastern Europe. That recital actually represented a response to the concerns expressed by certain participants in the market investigation during phase I of that investigation, which the Commission set out in recital 269 to the contested decision. The Commission stated in the latter recital that certain participants in the market investigation were concerned by the control that the concentration would give Lufthansa ‘of a very substantial part of a so-called Central European market, particularly as a result of [Lufthansa’s and Austrian’s] control of the most important hubs catering [for Central and Eastern Europe] and their well-developed networks concerning this area’. As those concerns did not relate to particular routes, but to what was alleged to be Lufthansa’s strengthened position on the entire ‘Central European market’, the Commission, correctly, merely confirmed that, in accordance with what the participants in the market investigation had indicated during phase II, significant network airlines served Central and Eastern Europe. It cannot be inferred that in doing so the Commission failed in its duty to state reasons.

98 As regards the applicant’s argument that the failure to state reasons in the contested decision concerning the competitive situation on the routes between Central Europe and Eastern Europe cannot be explained by the short timescales within which a decision must be adopted in the context of phase II of the investigation procedure, which did not expire until 6 November 2009, it is sufficient to observe that, as stated above, the applicant has not shown that the Commission failed in its obligation to state reasons as regards the competitive analysis of the routes between Central Europe and Eastern Europe; that argument is therefore unfounded and must be rejected.

99 Furthermore, in so far as the applicant’s argument must be interpreted as constituting a complaint that the Commission did not set out in detail in the contested decision the competitive analysis of all routes between Central Europe and Eastern Europe on which the services provided by the parties to the concentration presented a direct/indirect or an indirect/indirect overlap, it should be borne in mind that the reasoning 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 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 renew. Thus, 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 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63; 22 June 2004 in Portugal v Commission, C‑42/01, ECR, EU:C:2004:379, paragraph 66; and 15 April 2008 in Nuova Agricast, C‑390/06, ECR, EU:C:2008:224, paragraph 79).

100 The institution which adopted the measure is not required, however, to define its position on matters which are plainly of secondary importance or to anticipate potential objections (see, to that effect, judgment of 25 October 2005 in Germany and Denmark v Commission, C‑465/02 and C‑466/02, ECR, EU:C:2005:636, paragraph 106). Moreover, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision (see judgments of 1 December 1965 in Schwarze, 16/65, ECR, EU:C:1965:117, pp. 1081, 1096 and 1097, and 14 February 1990 in Delacre and Others v Commission, C‑350/88, ECR, EU:C:1990:71, paragraph 16). Thus, the Commission does not breach its duty 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 in Commission v Sytraval and Brink’s France, paragraph 99 above, paragraph 64). Such a requirement would be difficult to reconcile with the need to act quickly 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 8(2) of the Merger Regulation 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.

101 In view of the fact that the Commission had already found the existence of competition concerns on routes having direct overlaps with respect to which the parties had proposed satisfactory commitments and that it had not found the slightest competition concern on routes having direct/indirect and indirect/indirect overlaps and, moreover, of the significant number of the latter routes in the light of the size of the respective networks of Lufthansa and Austrian, and, last, of the obligation to adopt a decision as soon as the serious concerns are removed, in particular as a result of modifications made by the undertakings to the concentration, the Commission was entitled, without being in breach of its obligation to state reasons, merely to describe the competitive situation on those routes in the way in which it described them in recitals 267 to 273 to the contested decision.

102 It is appropriate, therefore, to reject as unfounded the first part of the second plea, alleging breach of the obligation to state reasons with respect to the competitive situation on the routes between Central Europe and Eastern Europe.

Second part of the second plea, alleging insufficiency of the establishment of the facts in the context of the market investigation

103 The applicant claims that, given the conditions in which the market investigation was carried out, the Commission was not physically capable of taking account of the results of that investigation concerning the market conditions relating, in particular, to routes between Central Europe and Eastern Europe.

104 The applicant maintains, in particular, that on 16 July 2009, in the context of the market investigation, the Commission sent Lufthansa’s and Austrian’s competitors a questionnaire to be completed by no later than 24 July 2009. In that questionnaire, the Commission requested a large amount of information, notably concerning routes to Eastern Europe and the Middle East. On 20 and 24 July 2009, the Commission sent the applicant alone other questionnaires to be completed by no later than 27 and 30 July 2009.

105 Subsequently, Lufthansa sent, on 27 July 2009, revised proposals for commitments which were less extensive than those proposed during phase I of the examination of the concentration concerning the slots that would be made available, in that the revised proposals no longer envisaged the granting of slots on the Vienna-Zurich (Switzerland) route, although the phase I proposals for commitments were deemed insufficient by the Commission, as is clear from the initiation of phase II of the investigation.

106 According to the applicant, on 27 July 2009 the Commission sent competitors a questionnaire relating to those new proposals for commitments, which was to be completed by no later than 30 July 2009. In that context, the applicant was informed by a member of the Commission’s team that the earlier questionnaires would no longer be processed and that only the last proposals for commitments submitted by Lufthansa would be examined.

107 In addition, the applicant emphasises that, as is apparent from a Commission press release, the Member of the Commission responsible for the case in question, Ms Neelie Kroes, gave instructions to her team on 31 July 2009 — only one day after the expiry of the deadline for completion of the last questionnaires — to prepare a decision authorising the concentration between Lufthansa and Austrian.

108 It is therefore clear that the Commission did not properly conduct the investigation of the market conditions, which it had itself initiated, in particular as regards the routes to Eastern Europe.

109 In that regard, it is important to bear in mind that it is for the Commission to assess whether the information available to it is sufficient for the competitive analysis, just as it is for the Commission to assess whether the commitments proposed eliminate with a sufficient degree of certainty the competition concerns revealed.

110 As regards, in the first place, the applicant’s assertion that the Commission did not take account of the responses to the questionnaire of 16 July 2009 on routes to Eastern Europe and the Middle East, it should be observed that it is based solely on a statement made to the applicant by a member of the Commission’s staff responsible for the case. It must be stated that the applicant has adduced no evidence of such a statement and that assertion must therefore be rejected as mere unsubstantiated allegation.

111 As regards, in the second place, the applicant’s argument that the Commission would not have been capable of taking account of the responses to the questionnaires relating to the new commitments proposed by the parties on 27 July 2009 owing to the short time that elapsed between the deadline for responding to those questionnaires and the decision of the Member of the Commission responsible for the case to request its staff to prepare a conditional authorisation decision, it should be observed that the Commission maintains in its pleadings that, owing to the minimal nature of the changes made to the commitments submitted by the parties to the concentration on 10 July 2009, the perusal of the responses to the questionnaires relating to those commitments took very little time.

112 As the procedural file contained neither the commitments of 10 July 2009 of the parties to the concentration, nor the questionnaire of 27 July 2009 concerning the commitments of the same date, nor even the responses to that questionnaire, the Court, by a measure of organisation of procedure of 18 February 2013, requested the Commission to produce those documents in order to ascertain whether it was physically possible for the Commission’s staff to take the responses to the questionnaire of 27 July 2009 into account before the Member of the Commission responsible for the case in question asked them to prepare a conditional authorisation decision.

113 On 22 March 2013, the Commission produced the commitments of 27 July 2009 of the parties to the concentration, and also the responses to the questionnaire of 27 July 2009 concerning those commitments, which had been received no later than the beginning of the morning of 31 July 2009. The Commission stated, in its reply to the request for the production of documents, that it had also taken into consideration in its assessment the responses that arrived late, that is to say the ones that arrived during the afternoon of 31 July 2009, which were not produced, but that that had not led to a different result, so that the failure to include those responses before the contested decision was adopted by the College of Commissioners had no consequences. However, the Commission did not produce the commitments of 10 July 2009.

114 In those circumstances, the Court, by a new measure of organisation of procedure, requested the Commission to produce the commitments proposed by the parties to the concentration on 10 July 2009 and also the responses to the questionnaires sent to the market players on 27 July 2009 which it had not yet produced. The Commission complied with that request on 19 August 2013.

115 A comparison of the commitments given by the parties to the concentration on 10 and 27 July 2009 shows that the differences between them are confined to the extent to which the parties to the concentration will make slots available on the routes between identified city pairs. In particular, it should be observed that the commitments of 27 July 2009 envisage that four slots per day will be made available to new entrants on the Vienna-Munich route, whereas the commitments of 10 July 2009 envisaged that two daily slots would be made available on the Vienna-Geneva route. Likewise, the details of the revision of the existing agreements between Lufthansa and the applicant concerning the slots to be made available on the Vienna-Frankfurt-am-Main route to reflect Lufthansa’s commitments are slightly different (paragraphs 1.1.1 and 1.1.3 of the two successive versions of the commitments). Having regard to all the commitments given by the parties to the concentration, it must be considered that those changes can be described as slight, notwithstanding their particular importance to the applicant.

116 Therefore, in spite of the significant number of responses received by the Commission to the questionnaire sent to market operators on 27 July 2009, the analysis of those responses does not appear to have been an impossible task for the Commission’s staff to have completed before the Member of the Commission responsible for the case in question asked them, on the basis, in particular, of that analysis, to prepare a conditional authorisation decision.

117 It follows that the second part of the second plea and, accordingly, the second plea in its entirety must be rejected as unfounded.

2. First plea, alleging infringement of Article 81(1) and (3) EC and Article 8 of the Merger Regulation and breach of the 2004 Guidelines

118 The first plea consists of five parts. The first part alleges a manifest error of assessment in the definition of the relevant geographic market for the purpose of assessing the competitive effects of the concentration; the second part alleges a manifest error of assessment in relation to the competitive effects of the concentration on routes between Germany and Austria; the third part alleges a manifest error of assessment in relation to the consequences of the concentration on air routes between Central Europe and Eastern Europe outside the European Union; the fourth part alleges a manifest error of assessment in relation to the ability of Lufthansa’s and Austrian’s competitors to remain on or to enter the relevant market following the concentration; and the fifth part alleges a manifest error of assessment in relation to the ability of the commitments to provide a remedy for the competition concerns created by the concentration.

First part of the first plea, alleging a manifest error of assessment in the definition of the relevant geographic market

119 The applicant takes issue with the Commission, in essence, for having defined the relevant geographic market according to the O&D approach and for not having taken a more global approach to the relevant geographic market, which would have been more appropriate for the purpose of assessing the effects of the concentration on competition between two network air carriers, such as Lufthansa and Austrian.

The definition of the market by the Commission according to the O&D approach

120 As a preliminary point, it should be borne in mind that, according to section 6 of Form CO relating to the notification of a concentration pursuant to the Merger Regulation, set out in Annex I to Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing [the Merger Regulation] (OJ 2004 L 133, p. 1), ‘[t]he relevant product and geographic markets determine the scope within which the market power of the new entity resulting from the concentration must be assessed’.

121 In Section 6, under the heading ‘I. Relevant product markets’, the following is stated: ‘A relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products’ characteristics, their prices and their intended use … Factors relevant to the assessment of the relevant product market include the analysis of why the products or services in these markets are included and why others are excluded by using the above definition, and having regard to, for example, substitutability, conditions of competition, prices, cross-price elasticity of demand or other factors relevant for the definition of the product markets (for example, supply-side substitutability in appropriate cases).’

122 Also in Section 6, under the heading ‘II. Relevant geographic markets’, the following is indicated: ‘The relevant geographic market comprises the area in which the undertakings concerned are involved in the supply and demand of relevant products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring geographic areas because, in particular, conditions of competition are appreciably different in those areas. Factors relevant to the assessment of the relevant geographic market include inter alia the nature and characteristics of the products or services concerned, the existence of entry barriers, consumer preferences, appreciable differences in the undertakings’ market shares between neighbouring geographic areas, or substantial price differences.’

123 The Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5; ‘the notice on market definition’), to which Form CO in Annex I to Regulation No 802/2004 refers, sets out the basic principles of market definition.

124 Thus, as regards competitive constraints, paragraph 13 of the notice on market definition states that: ‘Firms are subject to three main sources or competitive constraints: demand substitutability, supply substitutability and potential competition. From an economic point of view, for the definition of the relevant market, demand substitution constitutes the most immediate and effective disciplinary force on the suppliers of a given product, in particular in relation to their pricing decisions. …’

125 Furthermore, paragraph 14 of the notice on market definition states: ‘The competitive constraints arising from supply side substitutability other than those described in paragraphs 20 to 23 and from potential competition are in general less immediate and in any case require an analysis of additional factors. As a result such constraints are taken into account at the assessment stage of competition analysis.’

126 The notice on market definition then defines what is to be understood by demand substitution, supply substitution and potential competition.

127 Thus, paragraph 15 of the notice on market definition states: ‘The assessment of demand substitution entails a determination of the range of products which are viewed as substitutes by the consumer. One way of making this determination can be viewed as a speculative experiment, postulating a hypothetical small, lasting change in relative prices and evaluating the likely reactions of customers to that increase. The exercise of market definition focuses on prices for operational and practical purposes, and more precisely on demand substitution arising from small, permanent changes in relative prices. …’

128 According to paragraph 16 of the notice on market definition, that approach means that, ‘starting from the type of products that the undertakings involved sell and the area in which they sell them, additional products and areas will be included in, or excluded from, the market definition depending on whether competition from these other products and areas affect or restrain sufficiently the pricing of the parties’ products in the short term’.

129 In the context of the approach referred to above, paragraph 17 of the notice on market definition states: ‘The question to be answered is whether the … customers [of the parties to the concentration]would switch to readily available substitutes or to suppliers located elsewhere in response to a hypothetical small (in the range 5% to 10%) but permanent relative price increase in the products and areas being considered. If substitution were enough to make the price increase unprofitable because of the resulting loss of sales, additional substitutes and areas are included in the relevant market. This would be done until the set of products and geographical areas is such that small, permanent increases in relative prices would be profitable. …’

130 Paragraph 20 of the notice on market definition refers to supply substitution in the following terms: ‘Supply-side substitutability may also be taken into account when defining markets in those situations in which its effects are equivalent to those of demand substitution in terms of effectiveness and immediacy. This means that suppliers are able to switch production to the relevant products and market them in the short term … without incurring significant additional costs or risks in response to small and permanent changes in relative prices. When these conditions are met, the additional production that is put on the market will have a disciplinary effect on the competitive behaviour of the companies involved. Such an impact in terms of effectiveness and immediacy is equivalent to the demand substitution effect.’

131 Paragraph 21 of the notice on market definition states: ‘These situations typically arise when companies market a wide range of qualities or grades of one product; even if, for a given final customer or group of consumers, the different qualities are not substitutable, the different qualities will be grouped into one product market, provided that most of the suppliers are able to offer and sell the various qualities immediately and without the significant increases in costs described above. In such cases, the relevant product market will encompass all products that are substitutable in demand and supply, and the current sales of those products will be aggregated so as to give the total value or volume of the market. The same reasoning may lead to group different geographic areas.’

132 Conversely, paragraph 24 of the notice on market definition states: ‘The third source of competitive constraint, potential competition, is not taken into account when defining markets, since the conditions under which potential competition will actually represent an effective competitive constraint depend on the analysis of specific factors and circumstances related to the conditions of entry. If required, this analysis is only carried out at a subsequent stage, in general once the position of the companies involved in the relevant market has already been ascertained, and when such position gives rise to concerns from a competition point of view.’

133 The way in which the relevant market in the particular sector of scheduled passenger air transport should be defined in the context of the application of Article 82 EC has already been specified by the Courts of the European Union.

134 In accordance with the case-law, Article 82 EC may, in certain conditions, cover the application of tariffs for scheduled flights on a particular route or routes where those tariffs were fixed by bilateral or multilateral agreements concluded between air carriers, provided that the conditions laid down in that article are satisfied (see, by analogy, judgment of 11 April 1989 in Saeed Flugreisen and Silver Line Reisebüro, 66/86, ECR, EU:C:1989:140, paragraph 38).

135 In order to determine whether an airline operating scheduled flights has a dominant position on the market it is necessary first to define the relevant market in transport services. There are two possible approaches in that regard: the first is that the sector of scheduled flights constitutes a separate market; the second is that alternative possibilities, such as charter flights, the railways and road transport, should be taken into account, as well as scheduled flights on other routes that might serve as substitutes (see, by analogy, judgment in Saeed Flugreisen and Silver Line Reisebüro, cited in paragraph 134 above, EU:C:1989:140, paragraph 39).

136 The test to be employed in that respect is whether the scheduled flight on a particular route can be distinguished from the possible alternatives by virtue of specific characteristics as a result of which it is not interchangeable with those alternatives and is affected only to an insignificant degree by them (see, by analogy, judgment in Saeed Flugreisen and Silver Line Reisebüro, cited in paragraph 134 above, EU:C:1989:140, paragraph 40).

137 The application of that test does not necessarily yield identical results in the various cases which may arise; indeed, some airline routes are in a situation where no effective competition is likely to arise. In principle, however, and in particular as far as intra-Community routes are concerned, the economic strength of an airline on a route served by scheduled flights may depend on the competitive position of other carriers operating on the same route or on a route capable of serving as a substitute (see, by analogy, judgment in Saeed Flugreisen and Silver Line Reisebüro, cited in paragraph 134 above, EU:C:1989:140, paragraph 41).

138 As is apparent from the contested decision, the Commission has developed, in the context of the control of mergers in the scheduled passenger air transport sector, the O&D approach, which corresponds to a city pair ‘point or origin/point of destination’ approach and which reflects the perspective of demand according to which consumers envisage all possible options, including different forms of transport, in order to travel from a city of origin to a city of destination. According to that approach, that combination of a point of origin and a point of destination forms a distinct market. As the Commission points out, the O&D approach is recognised by the national competition authorities (see, for example, Decision 09-DCC‑17 of the French Competition Authority of 7 July 2009 in Financière LMP SAS/Financière Linair SAS/Brit Air SA, paragraph 22, and also the Decision of the Belgian Competition Council of 24 December 2004 in SN Airholding II/Virgin Express, paragraph 4.2).

139 The conformity of the O&D approach with the guidance to be found in the case-law was confirmed by this Court in the judgment of 19 May 1994 in Air France v Commission (T‑2/93, ECR, EU:T:1994:55, paragraph 84), and referred to more recently in the judgment of 4 July 2006 in easyJet v Commission (T‑177/04, ECR, EU:T:2006:187, paragraph 56). In that regard, it should be observed that in the judgment in easyJet v Commission (EU:T:2006:187) the contested decision related to a merger between two network airlines, namely Air France and KLM.

140 Accordingly, the complaint concerning the use of the O&D approach when defining the market may be rejected as unfounded on the sole basis of the case-law referred to above.

141 That finding is not called into question by the various arguments put forward by the applicant.

142 As regards, in the first place, the applicant’s argument that the Commission did not use the O&D approach in the Lufthansa/BMI decision, it should be observed that, when the Commission takes a decision on the compatibility of a concentration with the common market on the basis of a notification and a file pertaining to that transaction, an applicant is not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case, on the basis of a different notification and a different file, even where the markets at issue in the two cases are similar, or even identical. Thus, in so far as the applicant relies in this instance on assessments made by the Commission in a previous decision, that part of its argument is irrelevant (judgment of 14 December 2005 in General Electric v Commission, T‑210/01, ECR, EU:T:2005:456, paragraph 118).

143 Even on the assumption that that complaint could be classified instead as an allegation of a breach of the principle of the protection of legitimate expectations, economic operators have no grounds for a legitimate expectation that a previous practice in taking decisions that is capable of being varied will be maintained. A fortiori, they cannot plead such an expectation to challenge findings or assessments made in a given set of proceedings by invoking findings or assessments made in the context of just one previous case (judgment in General Electric v Commission, cited in paragraph 142 above, EU:T:2005:456, paragraph 119).

144 In any event, neither the Commission nor, a fortiori, the Court is bound in this instance by the findings of fact or economic assessments in the Lufthansa/BMI decision. Even on the assumption that the analysis in the two decisions differs without any objective justification for that difference, the Court ought to annul the contested decision only if that decision, as opposed to the Lufthansa/BMI decision, was vitiated by error (judgment in General Electric v Commission, cited in paragraph 142 above, EU:T:2005:456, paragraph 120).

145 As regards, in the second place, the applicant’s argument that the O&D approach used in the contested decision to define the relevant market does not correspond with the Commission’s definition of the relevant market in the decision on the restructuring plan, it should be borne in mind that, although each of those decisions dealt with the conditions in which Lufthansa took over Austrian, the fact none the less remains that they differ in both their subject-matter — the authorisation of State aid in one case and the authorisation of a concentration in the other — and their legal basis, the first subparagraph of Article 88(2) EC in one case and Article 2(2) of the Merger Regulation in the other.

146 When examining State aid that may be authorised in accordance with Article 87(3)(a) EC, the Commission must ensure that the aid in question will not alter trading conditions to an extent contrary to the common interest. The corrective measures that the Commission may impose in order to authorise such State aid are therefore closely related to the way in which the aid in question is capable of affective trading conditions. In the case of the decision on the restructuring plan, the aid in question is intended to ensure that Austrian is not indebted and forms part of a restructuring plan the purpose of which is ensure that airline’s return to long-term viability. The effects of that aid are therefore not limited to a particular market on which Austrian is present, but extend to its global situation. It is for that reason that the corrective measures imposed by the Commission in the decision on the restructuring plan, namely the reduction of the number of seats/km and the limitation of Austrian’s growth during a specific period, do not relate to a particular market, but rather to Austrian’s capacity to disrupt trading conditions in a global manner. It is thus stated in footnote 1 to the notice on market definition that ‘[t]he focus of assessment in State aid cases is the aid recipient and the industry/sector concerned rather than identification of competitive constraints faced by the aid recipient’.

147 In the context of the control of concentrations, on the other hand, the Commission must ensure, in accordance with Article 2(2) and (3) of the Merger Regulation, that the concentration will not significantly impede effective competition in the common market or in a substantial part of it. The focus of the assessment is then the effect of the concentration on the competitive constraint. It is for that reason that the commitments proposed by the notifying parties and accepted by the Commission in the contested decision are intended to remedy the competition concerns created by the concentration on the markets on which the parties competed before the concentration.

148 It follows that, contrary to the applicant’s submission, the definition of the relevant market in the contested decision, according to an O&D approach, is not inconsistent with the overall conception of the market capable of being affected by the State aid granted to Lufthansa in the decision on the restructuring plan.

149 As regards, in the third place, the applicant’s arguments that the Commission was wrong to justify the choice of the O&D approach for the purpose of defining the relevant market by the results of the market investigation, it must be held that, as the Commission rightly claims, those arguments were formulated for the first time in the reply.

150 However, it should be observed that those arguments are intended to call into question the Commission’s interpretation of the results of the market investigation which it produced for the first time in an annex to its defence. Such arguments must therefore be considered admissible under Article 48(2) of the Rules of Procedure, in that they are based on matters which came to light only in the course of the procedure (see, to that effect, judgment of 28 September 1999 in Yasse v EIB, T‑141/97, ECR-FP, EU:T:1999:177, paragraphs 126 to 128). It is therefore appropriate to examine the merits of those arguments.

151 First of all, the applicant claims that the Commission did not receive through the market investigation factual evidence that would have enabled it to ascertain whether the O&D approach was appropriate in the present case, but merely asked the operators questioned whether they approved of that approach, so that the choice of that method was determined solely by a poll of those operators.

152 In that regard, it should be observed that, as is apparent from paragraph 56 of the application, the applicant does not dispute the appropriateness of the O&D approach used by the Commission in previous merger cases. It thus recognises implicitly that the use of the O&D approach to identify the relevant market in the scheduled passenger air transport sector is an established practice. Furthermore, as pointed out in paragraph 139 above, this Court has held that the O&D approach constituted an appropriate approach for the purpose of defining the relevant market in the scheduled passenger air transport sector. In addition, it follows from Annex B1 to the defence, which corresponds to a part of the results of the market investigation carried out in the present case, that during phase I of the market investigation the Commission not only asked competitors, corporate customers and travel agencies whether they agreed with the traditional O&D approach based on demand side substitutability but that, in addition, it asked them to comment on their replies, which they did, as the applicant itself acknowledges. Consequently, contrary to the applicant’s contention, it cannot be considered that the market survey was limited in this instance to receiving the votes of the participants in the market investigation on the appropriateness of the O&D approach.

153 Next, the applicant maintains that the Commission was not entitled to use the responses from the operators questioned in the context of the market investigation to justify the use of the O&D approach, since, owing to the small number of operators questioned by comparison with the thousands of operators active on the relevant market, the market investigation was not representative.

154 In that regard, it should be observed that it is also clear from Annex B1 to the defence that the Commission questioned 31 undertakings that were competitors of the parties to the concentration, including the applicant, 35 corporate customers and 18 travel agencies. In order to assess the representativeness of the results of the market investigation on that point, it is appropriate to take account of the circumstances in which it was carried out.

155 As Annex B1 to the defence gives no indication of the total number of operators questioned by the Commission about the appropriateness of the O&D approach, or of the identity or the relative weight of the participants in the market investigation in the scheduled air passenger transport sector, the Court requested the Commission on 18 February 2013 to indicate what method had been used to ensure that the responses provided by the competitors, corporate customers and travel agencies in the context of the market investigation carried out during phase I of the examination of the concentration were representative.

156 In its response to that measure of organisation of procedure, the Commission stated that the undertakings which it had questioned in the context of the market investigation were the competitors, potential competitors and main independent customers of the parties to the concentration, whose details were supplied to it by the notifying parties, in accordance with paragraphs 7.3, 8.9 and 8.6 of Form CO in Annex I to Regulation No 802/2004 and referred to in Article 3(1) and Article 4(1) of that regulation. The Commission stated, on the basis of its own knowledge of the market, which it acquired through examining numerous other proposed mergers in the air transport sector, that among the undertakings in question were airlines competing with the parties to the concentration on the markets identified in the decision, and also the majority of corporate customers and main travel agencies. In addition, the Commission emphasised that, for the purposes of assessing the proposed concentration, the simple numerical ratio, that is the ratio between the positive answers and the negative answers to a question, was not decisive. Rather, the Commission undertakes a global assessment in which various factors may play a part, such as the reasons for the answer given, the knowledge which the undertaking consulted would be expected to have by reference to the circumstances (for example, the length of time an undertaking has been present on the market, its importance as a competitor or customer of the parties to the concentration, its actual sphere of activity) or the particular interests of each undertaking consulted (for example, the interest which a competitor may have in preventing the concentration, in view of its own policy of expansion or its interest in buying slots made available where commitments are given). In the Commission’s submission, in order to obtain the most representative picture possible of the market conditions, it also approached other advised market players (for example, airports, air traffic authorities and slot coordinators). In addition, according to the Commission, is the economic analysis of objective data. The Commission also stated that the representativeness of the market investigation was also ensured by the publication of the notification of the concentration, as referred to in Article 4(3) of Regulation No 139/004, whereby third parties are invited to submit to the Commission any comments which they may have on the proposed concentration.

157 Invited at the hearing to adopt a position on the additional information supplied by the Commission as to the representativeness of the market investigation, the applicant merely claimed that, in so far as the identities of the participants in the market investigation were not disclosed, it was not possible to determine whether they were active on the routes at issue and therefore whether the market investigation was representative.

158 In that regard, it is sufficient to observe that, contrary to what the applicant appears to believe, the market investigation is not limited to competitors of the notifying parties on the relevant geographic market, but also extends to potential competitors and also to customers of the notifying parties on that market.

159 In those circumstances, the Court considers that the applicant’s assertion that the market investigation was not representative must be rejected as unfounded.

160 Last, the applicant’s argument that the Commission did not take account of the fact that in the context of the market investigation a large number of competitors expressed the need to take account of the network effects must also be rejected.

161 It should be observed that, as is apparent from Annex B1 to the defence, phase I of the market investigation revealed that a large majority of the participants in the market investigation (22 out of 31 competitors, 15 out of 18 travel agencies and 31 out of 35 corporate customers) stated that they agreed with the traditional O&D approach based on demand-side substitutability.

162 It is also apparent from Annex B1 to the defence that, among the 31 competitors who answered question 7 in the market investigation, the purpose of which was to determine whether they agreed with the use of the O&D method, six clearly expressed doubts as to the ability of that approach to take account of competition between networks (in fact participants nos 2, 3, 12, 19, 22 and 30 in the market investigation) the three voiced their concerns about the strengthening of the position of the merged entity at a given airport (in fact participants nos 4, 7 and 10 in the market investigation). Of the six participants in the market investigation who expressed doubts as to the ability of the O&D approach to take account of competition between networks, three, however, answered the question in the affirmative (in fact participants nos 2, 12 and 19 in the market investigation). Of the three participants in the market investigation who disclosed their concerns as to the strengthening of the position of the merged entity at an airport, one answered question 7 in the affirmative (participant no 7 in the market investigation). It follows that of the nine participants in the market investigation who voiced their concerns as to the need to take account of competition between networks and of the importance of the position of the merged entity at certain airports, only five answered question 7 in the negative.

163 It also follows from Annex B1 to the defence that none of the travel agencies or corporate customers who answered question 7 expressed the least concern as to the need to take competition between the networks of the airlines into account.

164 It follows that, out of 81 participants in the market investigation, only five revealed their disagreement with the O&D approach, on the ground that it did not allow the network effects to be taken into account.

165 Furthermore, it must be stated that Commission referred, in recital 269 to the contested decision, to the concerns of certain participants in the market investigation during phase I of that investigation with respect to ‘the strong market position of [Lufthansa] and [Austrian] in [the Central and Eastern European market], concerning mainly the post-transactional control by [Lufthansa][ of a very substantial part of a so-called Central European market, particularly as a result of their control of the most important hubs catering [for Central and Eastern Europe] and their well-developed networks concerning this area’. It none the less stated that ‘[t]he results of the more refined phase II market investigation showed, however, that the vast majority of corporate customers in particular do not see any negative impact in relation to a potentially strengthened position of the