Case C-95/04 P: Appealbrought on 26 February 2004 by British Airwaysplc against the judgment delivered on 17 December 2003 bythe First Chamber of the Court of First Instance of the European Communitiesin case T-219/99 between British Airways plc and the Commission of the EuropeanCommunities, supported by Virgin Atlantic Airways Ltd.
Date: 2004-04-30
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), air transport, competition, dominant position, transport company

C 106/22

EN

Official Journal of the European Union

30.4.2004

Action brought on 23 February 2004 by the Commission
of the European Communities against the United Kingdom
of Great Britain and Northern Ireland.

(Case C-88/04)

(2004/C 106/39)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of the
European Communities on 23 February 2004 by the Commis-
sion of the European Communities, represented by K. Banks,
acting as agent, with an address for service in Luxembourg.

The Applicant claims that the Court should:

— declare that, by failing to adopt all the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 (1) on the harmonisation of
certain aspects of copyright and related rights in the infor-
mation society, or in any event by failing to notify all the
necessary provisions
the United
Kingdom has failed to fulfil its obligations under article 13
of the Directive;

to the Commission,

— order the United Kingdom to pay the costs of this action.

Pleas in law and main arguments:

The period within which the directive was to be implemented
expired on 22 December 2002.

(1) OJ 2001 L 167, p. 10.

Appeal brought on 26 February 2004 by British Airways
plc against the judgment delivered on 17 December 2003
by the First Chamber of the Court of First Instance of the
European Communities in case T-219/99 between British
Airways plc and the Commission of
the European
Communities, supported by Virgin Atlantic Airways Ltd.

(Case C-95/04 P)

(2004/C 106/40)

An appeal against the judgment delivered on 17 December
2003 by the First Chamber of the Court of First Instance of the
European Communities in case T-219/99 (1) between British
Airways plc and the Commission of the European Commu-

nities, supported by Virgin Atlantic Airways Ltd, was brought
before the Court of Justice of the European Communities on
26 February 2004 by British Airways plc (hereinafter BA),
established in Waterside (United Kingdom), represented by R.
Subiotto and J. Temple Lang, solicitors, R. O'Donoghue and W.
Wood QC, barristers.

The Appellant claims that the Court should:

— set aside the judgment in case T-219/99 British Airways plc

v. Commission in whole or in part;

— annul or reduce the amount of BA's fine by an amount
considered appropriate by the Court of Justice in the exer-
cise of its discretion; and

— take any other measure that the Court of Justice deems

appropriate.

Pleas in law and main arguments:

A. The Court of First Instance Erred In Law By Applying The
Wrong Test To Assess The Exclusionary Character Of BA's
Commissions

therefore, exclusionary. However,

The Court of First Instance held that BA's commissions were
‘fidelity-building’, and,
the
Court of First Instance's ‘fidelity-building’ test cannot distinguish
fidelity secured by abusive exclusionary
between customers'
fidelity resulting from legitimate
behaviour and customers'
price competition. If accepted, the Court of First Instance's ‘fide-
lity-building’ test would create significant legal uncertainty as to
the scope of legitimate price competition, and thus create disin-
centives for firms to engage in legitimate price competition,
frustrating the basic purpose of Community competition law.

B. The Court of First Instance Erred In Law By Disregarding
The Evidence That BA's Commissions Had No Material
Effect On Competitors

BA's second ground of appeal concerns the Court of First
Instance's findings on the effects of BA's commissions. Clear
evidence showed that rivals' shares of sales increased during the
period of the alleged infringement and that BA's share of travel
agents' sales declined. The Court of First Instance dismissed this
evidence, arguing that BA's conduct ‘cannot fail to have had’ an
effect on its rivals and that BA's competitors would have done
even better, but for its conduct. The Court of First Instance
added that where a dominant undertaking implements a prac-
tice tending to oust its competitors, the fact that the result is
not achieved is not sufficient to prevent a finding of abuse.

30.4.2004

EN

Official Journal of the European Union

C 106/23

This reasoning is defective. First, competition law requires the
Court
to examine the actual or likely effects of allegedly
abusive conduct. This was certainly approproiate in this case,
since BA's conduct had lasted sufficiently long to assess its
effects. Second, there was clear evidence in the present case
that BA's practices had no material effect. BA does not suggest
that actual effects need to be demonstrated in every case. But it
is clearly a different matter to suggest, as the Court of First
Instance does, that clear evidence pointing to a lack of any effect
can be disregarded. The Court of First Instance's findings in this
regard would, if accepted, mean that incentive practices such as
those at issue would be per se abusive,
irrespective of their
actual or likely effects. This is not the law under Article 82 EC,
which requres an examination of
in
order to assess whether rivals' opportunities were materially
limited.

‘all the circumstances’

E. The Court of First Instance Misapplied Article 82(c) EC In
Relation To The Discriminatory Effect Of BA's Commis-
sions

The Court of First Instance misapplied Article 82(c) EC in
finding that BA's commissions discriminated between travel
agents. Article 82(c) EC does not require that all customers
benefit from the same prices and terms and conditions.
It
proscribes differences only if: (i) the compared transactions are
equivalent; (ii) the conditions applied to the transactions are
different; and (iii) one trading party suffers a competitive disad-
vantage vis-à-vis the other trading party as a result of such
differences. Instead of applying the express wording of Article
82(c) EC, the Court of First Instance simply assumed that the
mere fact that two agents receive different rates of commission
‘naturally’ had a material impact on their abililty to compete
with one another.

C. The Court of First Instance Erred In Law By Failing To
Consider Whether There Was ‘Prejudice To Consumers’
Under Article 82(b) EC

(1) OJ C 20, 22.01.2000, p. 21.

Conduct which ‘limits’ the market of competitors of a domi-
nant company is unlawful under Article 82(b) EC only if it
‘prejudice to consumers’. Article 82(b) EC clearly
causes
protects competition and consumers, not competitors. The
Court of First Instance erred in law by its failure to consider
whether BA's commissions for successful travel agents harmed
consumers. The judgment under appeal makes no analysis of
this requirement, but only addresses the situation of BA's
competitors.

Reference for a preliminary ruling by the Amtsgericht
Niebüll by order of that Court of 2 June 2003 in the
family-law case of Standesamt Niebüll
(relating to the
determination of the birth name of the German child
Leonhard Matthias)

(Case C-96/04)

(2004/C 106/41)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Amtsgericht Niebüll
(Niebüll Local Court) of 2 June 2003, received at the Court
Registry on 26 February 2004, for a preliminary ruling in the
family-law case of Standesamt Niebüll (relating to the determin-
the German child Leonhard
ation of
Matthias) on the following questions:

the birth name of

In light of the prohibition on discrimination set out in Article
12 EC and having regard to the right to the freedom of move-
ment for every citizen of the Union laid down in Article 18 EC,
is the German provision on the conflict of laws contained in
Article 10 of the EGBGB valid, in so far as it provides that the
right to bear a name is governed by nationality alone?

D. Even If BA's Commissions Had In Principle Been Capable of
‘Limiting’ Rivals' Markets, The Court of First Instance Erred
In Law By Failing to Analyse These Effects

BA's fourth ground of appeal needs to be considered only if,
contrary to its first, second and third grounds of appeal,
its
incentives schemes were in principle capable of limiting rivals'
markets to the prejudice of consumers, contrary to Article
82(b) EC. The judgment under appeal fails to analyse or quan-
tify the extent
to which BA's commissions limited rivals'
markets in two respects: (i) the Court of First Instance wrongly
treated the MAs and PRS as having the same effect, since each
had different terms and conditions and was in operation for
different periods, and at least one of them (the PRS) could not
have been exclusionary on any basis;
(ii) the Court of First
Instance failed to examine ‘all the circumstances’ to assess how
BA's rivals were affected by its commission schemes.