Summary of Commission Decision of 26 January 2011 declaring a concentration to be incompatible with the internal market and the EEA Agreement (Case COMP/M.5830 — Olympic/Aegean Airlines) (notified under document C(2011) 316 final)  Text with EEA relevance
Date: 2011-01-26
Institutions: European Commission
Subjects: Greece, airline, economic concentration, free competition, merger control, single market








C_2012195EN.01001101.xml










3.7.2012   


EN


Official Journal of the European Union


C 195/11





Summary of Commission Decision
of 26 January 2011
declaring a concentration to be incompatible with the internal market and the EEA Agreement
(Case COMP/M.5830 — Olympic/Aegean Airlines)
(notified under document C(2011) 316 final)
(Only the English text is authentic)
(Text with EEA relevance)
2012/C 195/10

On 26 January 2011, the Commission adopted a decision under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the Merger Regulation’)
 (1), and in particular Article 8(3) thereof. A non-confidential version of the decision can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address:


http://ec.europa.eu/comm/competition/index_en.html







(1)


On 24 June 2010, the Commission received a notification of a proposed concentration (‘the transaction’) pursuant to Article 4 of Council Regulation (EC) No 139/2004 (‘the Merger Regulation’) by which the Vassilakis group of companies, Greece (‘Vassilakis’), Marfin Investment Group, Greece (‘Marfin’) and the Laskaridis group of companies, Greece (‘Laskaridis’) (collectively ‘the parties’) acquire joint control by way of purchase of shares over a newly merged company (‘the merged entity’) including the businesses of the following previously independent Greek companies:






(a)


Aegean Airlines SA (‘Aegean’); and










(b)


Olympic Air SA (‘Olympic Air’), Olympic Handling SA (‘Olympic Handling’) and Olympic Engineering SA (‘Olympic Engineering’) (collectively ‘Olympic’).








I.   PARTIES







(2)


Vassilakis is a privately owned Greek group of companies with investments in aviation (Aegean), ground handling (Goldair Handling), car rental and leasing as well as car import and distribution.










(3)


Marfin is an investment group with investments in aviation (Olympic Air), ground handling (Olympic Handling), maintenance, repair and overhaul services (Olympic Engineering), in-flight catering (Olympic Catering), shipping (including Attica Group's Superfast and Blue Star shipping lines which are active on several routes between the Greek mainland and islands in the Aegean Sea as well as other car-passenger transport and freight services active in the Adriatic Sea), healthcare, IT and telecoms, tourism and leisure, and the food and beverages sectors.










(4)


Laskaridis is a privately owned group of companies with investments in aviation (Aegean), shipping and shipyards, ground handling, tourism and real estate.










(5)


Aegean is a listed independent Greek air carrier providing scheduled and charter air passenger transport as well as cargo transport. Since 1999, Aegean has been offering scheduled flights on Greek domestic routes as well as international short-haul routes. It operates a base at Athens International Airport and currently serves more than 45 short-haul destinations (including some public service obligation routes). Aegean joined the Star Alliance on 30 June 2010 (2).










(6)


Olympic is solely controlled by Marfin and consists of three entities:






(i)


Olympic Air is active in air transport of passengers and cargo. It started its operations on 1 October 2009 following the privatisation of former Olympic Airlines in the course of which Marfin acquired the brand, slots and licenses of liquidated Olympic Airlines (3). Olympic Air operates a hub at Athens International Airport (‘AIA’) and serves around 40 short-haul destinations (including some public service obligation routes). It does not belong to any alliance;










(ii)


Olympic Handling offers a full range of ground handling services at 39 Greek airports, serving both Olympic Air and third party airlines;










(iii)


Olympic Engineering is currently in start-up mode and will be active in the provision of maintenance, repair and overhaul services ranging from handling of general events for a single aircraft to full support packages for commercial airplanes.








II.   CONCENTRATION AND EU DIMENSION







(7)


The transaction concerns the acquisition of joint control over a newly merged company and therefore it constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.










(8)


The transaction has EU dimension within the meaning of Article 1(3) of the Merger Regulation.




III.   PROCEDURE







(9)


After the first phase market investigation, the Commission concluded that the transaction fell within the scope of the Merger Regulation and raised serious doubts as to its compatibility with the internal market and with the EEA Agreement. As a result, on 30 July 2010, the Commission initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation.










(10)


The second phase market investigation confirmed the existence of competition concerns on a number of markets leading to the issuance of a statement of objections (‘SO’) on 20 October 2010. The parties had the opportunity to make their views known through a written response to the SO and at an oral hearing held on 11 November 2010. On 18 November 2010, a supplementary statement of objections (‘SSO’) was sent to the parties; and on 6 December 2010, the Commission sent the parties a letter of facts.










(11)


On 12 November 2010, the parties submitted commitments pursuant to Article 8(2) of the Merger Regulation. The commitments were modified at three occasions, ultimately leading to a submission of a final set of Commitments on 6 December 2010. To gather the views of market participants on the effectiveness of the proposed commitments, the Commission conducted two market tests.










(12)


On 26 January 2011, the Commission adopted pursuant to Article 8(3) of the Merger Regulation a decision declaring the transaction to be incompatible with the internal market and the EEA agreement (the ‘Decision’).




IV.   RELEVANT MARKETS

1.   Air transport of passengers

1.1.   Traditional point of origin/point of destination (O&D) pair approach







(13)


The transaction is assessed on the basis of the ‘point of origin/point of destination’ (O&D) approach, i.e. each O&D constitutes a separate market with its own characteristics in terms of passenger structure and product qualifications.




1.2.   Time-sensitive vs. non-time-sensitive passengers







(14)


The Commission has traditionally distinguished between two categories of passengers having different price sensitivity. Time-sensitive (price-insensitive) passengers tend to travel for business purposes, often require significant flexibility with their tickets (such as cost-free cancellation and modification of the time of departure, etc.) and are ready to pay higher prices for this flexibility. Non-time-sensitive (price-sensitive) customers travel predominantly for leisure purposes or to visit friends and relatives (‘VFR’), typically book long time in advance, do not generally require flexibility with their booking.










(15)


The market investigation showed that time-sensitive passengers and non-time-sensitive passengers constitute two distinguishable groups of passengers. However, it can be left open for the purpose of this Decision whether time-sensitive and non-time-sensitive passengers belong to two separate markets or whether one market encompassing all passengers should be defined as the competitive assessment remains the same irrespective of the precise market definition.




1.3.   Intermodal substitution







(16)


When defining the relevant O&D markets for air transport services, the Commission has previously considered other transport alternatives to the extent that they are substitutable to air travel on the affected routes (intermodal competition).










(17)


In the case at hand, the parties claimed that intermodal competition by ferries is relevant on the Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Mykonos, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos routes to the extent that ferries should be included in the relevant market along with air services. Similarly, train services should be included in the relevant market on the Athens–Thessaloniki route.










(18)


However, the market investigation showed that transportation by ferries is generally a distant substitute for air travel on all problematic routes as ferry services offer significantly different product from air services differing along important competitive dimensions such as price, aggregate travel time, availability of schedules as well as quality, convenience and reliability of the service. The market investigation showed also that neither Aegean nor Olympic Air take into account ferries in their price settings.










(19)


Furthermore, the market investigation showed that considerable differences exist also between train and air services as concerns important competitive parameters such as travel time, level of frequencies and quality and convenience of service, and that train is not perceived as a relevant constraint by Aegean and Olympic Air and their competitors.




1.4.   Conclusion on market definitions







(20)


It is concluded that, as concerns time-sensitive passengers, ferry services and air services form part of two separate markets, except for the Athens–Mykonos route. On the Athens–Mykonos route, air services and ferry services are part of the same product market as concerns time-sensitive passengers. As concerns the markets for non-time-sensitive passengers and all passengers, the question whether air services and ferry services belong to the same market can be left open for the purpose of this Decision, except for the Athens–Mykonos and Athens–Rhodes routes, as the competitive assessment would remain the same irrespective of whether ferry services are included or not to the relevant market. This is because, as will be shown in the route-by-route analysis, ferry services are only distant substitutes to air services on the routes of concern. For the Athens–Mykonos route, air and ferry services are part of the same product market as concerns the markets for non-time-sensitive passengers and for all passengers. For the Athens–Rhodes route, air and ferry services are not part of the same product market as concerns the markets for non-time-sensitive passengers and for all passengers.










(21)


Similarly, in relation to the Athens–Thessaloniki route, the market investigation showed that trains are not a real alternative to air services on this route as they are of substantially lower quality than air services. Therefore, train services are not to be included in the relevant market for any segment of passengers on the Athens–Thessaloniki route.




2.   Public service obligation (‘PSO’) routes







(22)


Olympic Air and Aegean are currently competing on the market for attribution of PSO routes in Greece which are awarded by the HCAA following a tender process.










(23)


Given that the transaction is unlikely to significantly impede effective competition on this market, irrespective of the precise market definition the Commission left the precise product and geographic market definition open as concerns the market for the attribution of PSO routes in Greece.




3.   Ground handling







(24)


The transaction gave rise to a vertically affected market for ground handling at various Greek airports.










(25)


According to the precedents in this market, the relevant product market for the provision of ground handling services encompasses both passenger and aircraft handling. The Commission left the precise geographic market definition open in the Decision given that the transaction is unlikely to significantly impede effective competition in relation to the ground handling market, irrespective of the precise geographic market definition.




4.   Other markets







(26)


The transaction gave rise to other affected markets, namely the markets for maintenance, repair and overhaul (‘MRO’), in-flight catering, and supply of airline seats to tour operators. The precise market definition with regard to all of these markets was left open in the Decision as the transaction is not likely to significantly impede effective competition in relation to any of these markets, irrespective of the precise market definition.




V.   COMPETITIVE ASSESSMENT

1.   Analytical framework







(27)


In its assessment of competitive effects of a transaction, the Commission has to compare the post-transaction situation with a situation likely to prevail absent the transaction (‘counterfactual’).










(28)


The parties claimed that the Greek market is too small to allow sustainable competing operations of two full service carriers such as Aegean and Olympic Air and as a result all routes can be profitably operated by only one carrier. Therefore, the parties submitted that it is unlikely that a situation whereby Aegean and Olympic Air would continue competing on a number of domestic and international routes would prevail absent the transaction.










(29)


According to the market investigation, there are no reasons to believe that the Greek market cannot sustain operations by more than one carrier, possibly with different business models. The analysis of the competitive situation likely to prevail absent the transaction reveals that Olympic Air and Aegean would be able to both operate on the Greek market, possibly in a restructured or downsized form.










(30)


Aegean and Olympic Air are likely to continue competing on ten Greek domestic routes, namely Athens–Chania, Athens–Kos, Athens–Mykonos, Athens–Rhodes, Athens–Samos, Athens–Mytilini, Athens–Herakleion, Athens–Chios, Athens–Santorini and Athens–Thessaloniki in the foreseeable future absent the transaction. As a result, the Commission assessed the effects of the elimination of competition on these domestic routes.










(31)


As concerns the international routes affected by the transaction, the question of the likely situation to prevail absent the merger was left open since the proposed concentration would not significantly impede effective competition on any of the international routes.




2.   Assessment

2.1.   Air transport of passengers

2.1.1.   The transaction leads to very large market shares on a number of Greek domestic routes







(32)


In the period January-June 2010, Olympic Air and Aegean together controlled [90-100 %] of passengers travelling on Greek domestic and [30-40 %] of passengers travelling on international routes out of AIA.










(33)


On the basis of a market definition excluding ferries and train on the routes where these modes are available, the transaction would have lead to extremely high combined market shares reaching 100 % in several instances.










(34)


Should the relevant markets encompass the other modes of transport (ferry or train depending on the route), the combined market shares of Aegean and Olympic Air would be significantly lower. However, given the limited competitive pressure other transport modes exert on air services due to very different product characteristics, such market shares would overestimate the significance of other modes of transport and greatly underestimate the actual competitive constraint exercised by Aegean and Olympic Air on each other.










(35)


Furthermore, Marfin, via its subsidiary Attica, solely controls two ferry companies active in Greece, namely Blue Star Ferries and Superfast Ferries. As a result, the competitive pressure of these ferry services on the merged entity is limited by the fact that they are controlled by Marfin.




2.1.2.   Closeness of competition between Aegean and Olympic Air







(36)


Aegean and Olympic Air have a very close competitive relationship. This clearly distinguishes them from other domestic airlines, active on a much lower scale, and from domestic ferry operators which offer products differing from those of Aegean and Olympic Air in several important competitive dimensions and whose pricing system is less sophisticated on domestic routes.




2.1.3.   Treatment of routes exited by Olympic Air and Aegean after the announcement of the transaction







(37)


Having analysed Aegean and Olympic Air's internal documents, the Commission found that exits following the announcement of the transaction by either Aegean or Olympic Air from the Athens–Kefallonia, Athens–Limnos, Athens–Sofia, Athens–Bucharest, Athens–Ioannina, Athens–Kavala, Athens–Tirana, Athens–Vienna, Athens–Corfu, Thessaloniki–Chania, Thessaloniki–Herakleion, Thessaloniki–Mytilini, Thessaloniki–Rhodes and Athens–Milan routes were already considered prior to the engagement of the transaction talks. As a result, such withdrawals of operations were not considered as merger specific.










(38)


Therefore, the Commission did not analyse these routes except for the Athens–Corfu route where it was concluded that the transaction would eliminate potential competition between Aegean and Olympic Air.




2.1.4.   Elimination of actual and potential competition on Greek domestic routes



Actual competition








(39)


The transaction would lead to a significant impediment to effective competition due to the elimination of actual competition on nine domestic routes: Athens–Thessaloniki, Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos, and Athens–Samos, irrespective of whether different markets are defined for time-sensitive passengers, non-time-sensitive passengers or all passengers (the latter two markets possibly including ferry services (4)).










(40)


Indeed, as concerns time-sensitive passengers for which ferries are clearly not an alternative, the transaction would have created de facto monopoly and eliminate competition between two particularly close competitors on all these routes, except for the Athens–Herakleion route where Sky Express operates a small-scale service. Indeed, Athens Airways ceased its operations in September 2010 and no other scheduled airline is currently active on these Greek domestic routes. Even if Athens Airways were to resume its operations, it is unlikely that it would exert sufficient constraint on the merged entity given the small scale of its operations. This is also true for Sky Express on the Athens–Herakleion route where it currently operates one daily frequency compared to 10 times more by Aegean and Olympic together.










(41)


As regards non-time-sensitive passengers, the Decision distinguishes between the routes where intermodal services are not part of the same market as air services (Athens–Thessaloniki and Athens–Rhodes) and all other routes of concern where the inclusion of ferry services into the same market was left open:






(a)


as regards the Athens–Thessaloniki and Athens–Rhodes routes, the transaction would lead to combined market shares of 90 % or more and eliminate competition between two particularly close competitors;










(b)


as regards Athens–Herakleion, Athens–Chania, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos, the same reasoning applies as in the case of Athens–Thessaloniki and Athens–Rhodes if ferries were not considered part of the same market. If ferries were considered part of the same market, the parties’ market shares (leaving aside Marfin’s subsidiary Attica Group) range between [30-70 %] in the winter season 2009-2010 and between [10-60 %] in part of the summer season 2010 (i.e. April-July 2010). The relevance of market shares as well as competition by ferries is however limited as ferry services exhibit a significant degree of differentiation compared to air services. As a result, it is unlikely that ferries would be in a position to discipline the merged entity’s behaviour, especially concerning fare setting, post transaction.














(42)


As regards the possible market encompassing all passengers, the conclusions for non-time-sensitive segment are applied mutatis mutandis although the actual market share levels slightly differ.






Potential competition








(43)


The market investigation also showed that the transaction would lead to the elimination of potential competition between Aegean and Olympic Air on the Athens–Corfu route. This is because Aegean and Olympic Air are potential competitors on this route given in particular their base at AIA and the fact the route has historically had sufficient demand to sustain operations of (at least) two carriers.




2.1.5.   Conclusion on the route-by-route assessment







(44)


The Commission concludes that the transaction would significantly impede effective competition in the internal market or a substantial part thereof within the meaning of Article 2(3) of the Merger Regulation, in particular as the result of the creation of a dominant position as regards the possible markets for time-sensitive passengers on the Athens–Thessaloniki, Athens–Herakleion, Athens–Chania, Athens–Rhodes, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos, and Athens–Samos routes, and on the Athens–Rhodes and Athens–Thessaloniki routes as far as the possible markets for non-time-sensitive passengers and all passengers are concerned. For those markets where ferry services may be part of the relevant market, namely the possible markets for non-time-sensitive passengers and all passengers on the Athens–Herakleion, Athens–Chania, Athens–Santorini, Athens–Mytilini, Athens–Chios, Athens–Kos and Athens–Samos routes, it is not necessary to definitively conclude on the creation of a dominant position, given that, even in the absence of the creation of a dominant position, the transaction would in any event significantly impede effective competition in the internal market as a result of the elimination of the particularly close competitive relationship between Aegean and Olympic Air and thus of the important competitive constraints that both airlines exert on each other pre-transaction.










(45)


In addition, the transaction would significantly impede effective competition in the internal market by the elimination of a credible potential entrant on the Athens–Corfu route.










(46)


In contrast, no competition concerns were found on other domestic and international routes where Aegean and Olympic Air currently compete. This is because on these other routes the merged entity would continue to face sufficient competition post transaction.




2.1.6.   Merger-induced entry in domestic routes is not likely, timely or sufficient







(47)


The Decision also analysed to which extent any post-transaction entry is likely to constrain the behaviour of the merged entity on the routes where competition between Aegean and Olympic Air would be eliminated or significantly reduced as a result of the transaction. For entry to be considered as a sufficient competitive constraint, it must be shown to be likely, timely and sufficient in order to restore the competitive constraints that Aegean and Olympic Air would continue to exert on each other in the absence of the transaction.










(48)


The market investigation showed that there are a number of important barriers to entry and/or expansion on all Greek domestic routes which altogether make it unlikely that any foreign or domestic competitor would enter the market and exercise credible competitive constraint on the merged entity post transaction. Indeed, to be able to discipline the merged entity's behaviour on Greek domestic routes, it was found that a new entrant would need to have a base at AIA and would need to develop a brand to gain brand awareness similar to the one of Aegean and Olympic Air. Furthermore, new entrant would have to cope with high sunk costs, have access to domestic and international connecting traffic and establish a network of distribution channels in Greece.










(49)


The Commission found that, post transaction, no entry into Greek domestic market would be likely, timely and sufficient to constrain the merged entity.




2.2.   Public service obligation (‘PSO’) routes







(50)


The Decision concludes that it is unlikely that the transaction would lead to a significant impediment of effective competition with respect to the market for the attribution of PSO routes in Greece given that the merged entity would continue to face competition from other established players in this market, namely Sky Express and Astra.










(51)


In addition, two airlines, namely Danish Air Transport and Romania's Carpatair, have expressed a clear interest in bidding for Greek PSO routes in the next round of tenders and the market investigation confirmed that in contrast with scheduled operations, airlines can start operations on PSO routes at a relatively small scale.




2.3.   Ground handling at Greek airports







(52)


The Commission analysed both the vertical issue arising from vertical relationship between ground handling market and air transport market as well as the likelihood of post-transaction coordination between Olympic Handling, Goldair (in which Vassilakis has an investment), and independent competitors Swissport International and Swissport Hellas Sud.










(53)


The market investigation revealed that even if the merged entity were to attempt to influence Goldair's behaviour on the market, Swissport would be in a position to undermine any coordination effort. Indeed, Swissport is a strong and credible player on the Greek ground handling market, aggressively gaining market share.










(54)


The Commission therefore concluded that the transaction is unlikely to give rise to coordinated effects as the post-merger market structure will not increase incentives of market participants to enter into collusive agreements. As concerns the vertical relationship between ground handling and air transport, the market investigation did not provide indications that that the transaction would give rise to any vertical effects.










(55)


Therefore, the transaction is not likely to significantly impede effective competition in the market for the provision of ground handling services in Greece.




2.4.   Other markets







(56)


Based on the result of the market investigation, the transaction is unlikely to significantly impede effective competition on the market for MRO services and in-flight catering (vertically related to the market for air transport of passengers) and on the market for the supply of airline seats to tour operators where Olympic is present only to a limited extent.




VI.   EFFICIENCIES







(57)


As set out in the Horizontal Merger Guidelines, it is for the parties to demonstrate that the efficiencies put forward counterbalance the anti-competitive effects of a merger. The parties should demonstrate that the three following cumulative conditions are met: (i) the efficiencies will bring benefits to consumers; (ii) the efficiencies are merger specific; and (iii) the efficiencies are verifiable (5).










(58)


The parties have not shown that the above conditions are met in this case.




VII.   ANALYSIS OF THE PARTIES’ FINANCIAL SITUATION







(59)


The Commission also analysed the overall financial situation of the parties.










(60)


The assessment made by the Commission led to the conclusion that the prospects of Aegean are positive, irrespective of the transaction.










(61)


As concerns the overall situation of Olympic Air it was found that Olympic Air had been incurring losses. In particular, Olympic Air as a start-up company has been engaging into an aggressive pricing strategy which impacted its revenues. However, the Commission's investigation showed that restructuring measures are under way and Olympic Air's profitability has been steadily improving.










(62)


It is therefore likely that, subject to further restructuring measures, Olympic Air's financial results will further improve in the foreseeable future. Besides, Olympic Air belongs to Marfin and hence its financial situation should be put in context of the broader financial situation of its only parent, Marfin. Given the level of costs linked to a hypothetical exit of Olympic Air out of the market, Marfin has an incentive to either continue to support its subsidiary or to sell it instead of incurring financial losses.










(63)


While the parties did not request it, the Commission decided to analyse Olympic's situation against the three criteria set out in paragraph 90 of the Horizontal Merger Guidelines (6). In this respect, the market investigation revealed that:






(a)


it is unlikely that, absent the transaction, Olympic Air would be forced out of the market in the near future;










(b)


less anti-competitive alternatives than the proposed concentration are likely to exist; and










(c)


absent the transaction, the assets of Olympic Air would not inevitably exit the market, in particular as the Olympic brand is a very attractive asset, likely to find a potential buyer which would use it in order to operate flights in the Greek market.














(64)


The Decision therefore concluded that it cannot be said that the deterioration of the competitive structure that would follow from the transaction would not directly be caused by the transaction.




VIII.   COMMITMENTS







(65)


In order to address competition concerns identified by the Commission, the parties submitted commitments which were modified at three occasions. All versions of the Commitments submitted by the parties have one common feature; they all mainly consist in the offer to release a number of slots at various Greek airports connecting the routes for which competition concerns were identified. The slot remedies were also accompanied by some ancillary commitments, for instance the offer to new entrants to (a) enter into an interlining agreement (7) with the merged entity on the problematic routes and (b) be hosted in the merged entity’s Frequent Flyer Programme for the identified city pair(s) operated by the new entrant.










(66)


The slot commitments foresaw grandfathering rights on the transferred slots to be acquired after utilisation of the slots by the new entrant for [0-6] consecutive IATA seasons (8). The slots transferred would be within the time window of [0-15] minutes from the times requested by the new entrant.










(67)


In addition, the parties offered to give access at non-discriminatory terms to the ground handling and maintenance, repair and overhaul services provided by the merged entity at AIA or at any destination airport for the nine abovementioned routes.










(68)


The commitments were meant to be in place for (confidential) or until new entrants would acquire on individual routes an aggregate market share of (confidential).










(69)


The Commission conducted two market tests to gather views of the relevant market participants on the effectiveness of the proposed remedies.










(70)


In this case, the main barriers to entry relate neither to the availability of slots, nor to the other features addressed by the ancillary commitments. Indeed, given the absence of airport congestion as concerns most airports in the present case, sufficient slots are available free of charge from the relevant airport authorities. The market test did not reveal any credible entry plans, be it by international or Greek domestic carriers. As a result, no timely, likely and sufficient entry would occur to discipline the merged entity's pricing behaviour post transaction.










(71)


Similarly to the previous cases, the mitigating factor whereby Greece is subject to a crisis which may have impact on actual entry plans of potential entrants, was taken into account in the assessment.




IX.   CONCLUSION







(72)


The notified concentration whereby the Vassilakis Group, Marfin Investment Group, and the Laskaridis Group acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control over a newly merged company, including the businesses of Aegean Airlines SA and of Olympic Air SA, Olympic Handling SA and Olympic Engineering SA, is declared incompatible with the internal market and the EEA Agreement.






(1)  OJ L 24, 29.1.2004, p. 1. With effect from 1 December 2009, the Treaty on the Functioning of the European Union (‘TFEU’) has introduced certain changes, such as the replacement of ‘Community’ by ‘Union’ and ‘common market’ by ‘internal market’. The terminology of the TFEU will be used throughout this Decision.

(2)  It is expected that the merged entity would be a member of Star Alliance.

(3)  The creation of the new Olympic was approved by the European Commission (see cases State aid N 321/08, N 322/08 and N 323/08) on the basis that the undertakings given by the Greek authorities were fully complied with.

(4)  In exception to the above, intermodal means of transport are not in the same market as air services for any category of passengers on the routes Athens–Rhodes (ferry) and Athens–Thessaloniki (train).

(5)  Horizontal Merger Guidelines, paragraph 78.

(6)  According to paragraph 90 of Merger Horizontal Guidelines ‘The Commission considers the following three criteria to be especially relevant for the application of a “failing firm defence”: first, the allegedly failing firm would in the near future be forced out of the market because of financial difficulties if not taken over by another undertaking. Second, there is no less anti-competitive alternative purchase than the notified merger. Third, in the absence of a merger, the assets of the failing firm would inevitably exit the market.’. For the avoidance of doubt, it should be noted that the parties did not invoke the so-called ‘failing firm defence’.

(7)  An interlining agreement is an agreement between two or more airlines under which the contracting airlines accept each other's travel documents (tickets).

(8)  Or for routes that are operated only in the summer season or only in the winter season, after 4 summer/winter seasons.